Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, August 14, 2018

Ranking the Scholarly Impact of Law Faculties

Every three years, I lead a team at the University of St. Thomas to study the scholarly citations of thousands of tenured law professors (involving more than half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship.  Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools.

With the full study available here, I am pasting the Top 50 below.  Notably, three Catholic law schools appear in or near the Top 25 -- Georgetown, the University of St. Thomas, and Notre Dame.

 

Rank

Law School

1

Yale

2

Harvard

3

Chicago

4

NYU

5

Columbia

6

Stanford

7

Cal-Berkeley

8

Duke

9

Pennsylvania

10

Vanderbilt

11

UCLA

12

Cal-Irvine

13

Cornell

14

Michigan

14

Northwestern

16

George Washington

16

Virginia

16

Georgetown

19

Texas

19

George Mason

21

Minnesota

21

Washington University

23

Cal-Davis

23

U. St. Thomas (MN)

23

USC

26

Notre Dame

27

Boston University

28

William & Mary

29

Colorado

29

Florida State

29

Fordham

32

Cardozo

32

Emory

32

Case Western

32

Arizona

36

Indiana-Bloomington

36

Illinois

36

North Carolina

36

U. San Diego

36

Arizona State

41

Maryland

41

Utah

41

Ohio State

44

Wake Forest

44

Hastings

44

Chicago-Kent

44

Brooklyn

48

Kansas

49

Alabama

49

BYU

49

Hofstra

In the next couple of days, I'll post my triennial thoughts on why scholarly work and scholarly impact are especially important for professors at Catholic law schools.

August 14, 2018 in Sisk, Greg | Permalink

"Hate Speech"

After giving testimony in the House of Representatives on the state of freedom of speech on American campuses, I received a formal request from the committee for a written response to an additional question submitted to me by Representative Mark Meadows. His question was:

“At what point does speech become hate speech and should be limited?"

Here is the text of my reply, which has now been filed:

“Hate speech” is a phrase with no settled or determinate meaning. Although certain forms of expression (defamation, obscenity, threats, false advertising, etc.) are unprotected under the First Amendment, there is no “hate speech” exception to the Amendment. I regret to say that this is a matter on which even many of our most talented and best educated young people are in error. Many of my own students at Princeton enter my Constitutional Interpretation course erroneously believing that “hate speech” is outside the scope of constitutional protection. One of my first tasks is to disabuse them.

My classrooms are always “free speech zones.” In fact, in my view, every public space on a college or university campus should be a “free speech zone” (which is to say that there should be no need for special “free speech zones” on a campus). Students are free to advocate any view, and, indeed, I encourage students to defend any view they hold, so long as they are prepared to do business in the proper currency of intellectual discourse—a currency consisting of evidence, reasons, and arguments. My Princeton colleague Peter Singer defends the morality not only of abortion but even of infanticide—the deliberate killing of newborn babies. I find his position appalling and even scandalous. But because he is ready, willing, and able to make his case by adducing evidence, providing reasons, and making arguments, I believe he has a right to make it and, indeed, should be encouraged to do so. That I am unpersuaded (and appalled and even scandalized) by such advocacy is neither here nor there; nor does it diminish his right. In fact, I encourage my own students to take Professor Singer’s classes and to consider his arguments in a thoughtful and open-minded manner. Their education is enhanced by considering not only the views and arguments about abortion and infanticide they hear from me, but also the ones they hear from him. I have no desire (and no right) to indoctrinate my students. And if they are to learn to think for themselves and be genuine truth-seekers, it is important for them to be exposed to challenges from the broadest possible range of perspectives. I want them to hear and consider my perspective. But I want them to hear and consider Professor Singer’s too. And I want them to hear and consider the perspectives of others as well.

Of course, someone could say: “Professor Singer is advocating the license to kill an entire class of human beings. That is hate speech. It should not be allowed. His tenure at Princeton should be revoked. He should be fired.” But such a person would receive no support from me. On the contrary, I would insist that Professor Singer’s right to state and defend his views—with evidence, reasons, and arguments—must be strictly respected and protected.

Now, a legitimate question arises about how we distinguish mere demagoguery from genuine intellectual arguments. As a practical matter, however, this is not an issue that has to be resolved to settle campus free speech policy. We must err on the side of free speech. We should fight demagoguery not by prohibiting speech, but by exposing the demagogue. The demagogue appeals to emotion (prejudice, animus, etc.) not reason. His “reasoning” is a counterfeit—indeed a burlesque—of the real thing. So let him speak, but call him out. The danger of restricting demagogic speech—the danger of censorship—is that the authority to restrict demagogic speech can, and quickly will, be used as a pretext for censoring speech that powerful persons or interests on campus abominate.

What I do not permit in my classroom, and what universities may legitimately prohibit (and should prohibit), are such things as assaults (much less actual batteries), intimidation, threats, and raw abuse. These kinds of activities are not even fake reasoning. They are the opposite of reasoning.  Calling a person a vile or vulgar name is not stating a reason or making an argument. Threatening or intimidating someone is not giving him a reason to change his mind about something. If that is what someone means by “hate speech,” then, yes, that should be forbidden on campus. It does not advance the intellectual mission of the university, viz. the cause of truth-seeking. On the contrary, it poisons the environment and makes genuine discussion and debate impossible.

But that, of course, is not ordinarily what people mean when they use the phrase “hate speech” and propose to prohibit it on campus. What they ordinarily mean by “hate speech” are positions and views that they detest and want to make it an offense to advocate or defend. They want, in effect, to immunize their own positions and views from critical challenge. This, to me, is simply unacceptable. My admirable friend Professor Allison Stanger was attacked by a mob on her own campus at Middlebury College not because she called someone a disgusting name or threatened or intimidated someone—she has never done and would never do anything of the kind—but because she was willing to engage in reasoned debate and discussion with Charles Murray, some of whose opinions were (to the limited extent that the people who constituted the mob understood them) anathema to them. These misguided souls justified their illiberal and violent actions by claiming to be fighting against “hate speech.”

I hope that these reflections are responsive to Chairman Meadows’ question. If more detail or additional thoughts would be helpful, please let me know. I will be happy to supply them.

Yours sincerely,

Robert George

August 14, 2018 | Permalink

Monday, August 6, 2018

Veritatis Splendor at 25 and Alasdair MacIntyre on What It Teaches Us

Pope John Paul II's mighty encyclical letter Veritatis Splendor was released on this date in 1993, and while it is probably best known in moral theology for its rejection of proportionalism (at ¶¶ 79-83: "circumstances or intentions can never transform an act intrinsically evil by virtue of its object into an act 'subjectively' good or defensible as a choice") there are a host of other vital aspects to the document. Here is a rich paragraph from an article by Alasdair MacIntyre, "How Can We Learn What Veritatis Splendor Has to Teach?," 58 The Thomist 171 (1994):

Yet as Catholics we have to listen first to what a very different set of voices have to say to us, those inspired and authoritative voices which declare the Word of God concerning those same moral matters about which our own culture speaks to us so vociferously and about which we have arrived at our own philosophical conclusions. Part of what we have to learn, or rather to re­learn, from Veritatis Splendor is that, at least so far as the fundamental and central precepts of the moral law are concerned, the truths about those precepts declared to us by God through Moses and the prophets, in the revelation by Jesus Christ of the New Law and in the teaching of the Catholic Church, culminating in this very encyclical, are no other than the truths to which we have already assented as rational persons, or rather to which we would have assented, if we had not been frustrated in so doing by our own cultural, intellectual, and moral errors and deformations. Yet the encyclical also teaches us that what we encounter in Jesus Christ is immeasurably more than this. We also have to learn of our forgiveness and our redemption and of the transformation made possible in our acknowledgment of law when we come to understand it in the light afforded by Jesus Christ. Nonetheless the law declared to us by God in revelation is the same law as that which we recognize in the moral requirements imposed by our own human practical understanding and reasoning, when they are in good order. So that when we become able to hear and to respond to what Jesus Christ has to say to us, we do not have to leave behind or discard anything that we had genuinely learned concerning the moral law through reasoning. Grace often corrects, as well as completes, what we have so far taken to be conclusions of reason, but, when grace does so correct us, it is always because we have in some way failed as reasoners. And therefore Veritatis Splendor, just because it is true to this biblical teaching, will be grotesquely misunderstood if it is understood as an act of coercive imposition by an external authority, rather than an invitation to become more thoughtful and more perceptive. It does indeed speak in the name of an authority external to us, God, but that to which it invites us--that to which He invites us--is in part an act of moral and rational self-recognition. And Veritatis Splendor as a work of philosophy does itself exhibit just that moral and rational awareness to which as an encyclical it invites its readers.

August 6, 2018 in Moreland, Michael | Permalink

Friday, August 3, 2018

Oliver O'Donovan on the Death Penalty

A shortcoming of the Catholic debate (the past couple of days certainly included) over the death penalty is a frequent lack of attention to distinctly theological questions and how they might inform the debate. The best alternative to that theological sterility, I think, is the Anglican theologian Oliver O'Donovan, who has written perceptively (and ambivalently) about the death penalty for many years. Here is a bit from the conclusion of his essay responding to John Paul II's discussion of the death penalty in Evangelium Vitae:

I return in closing to the theological issue raised at the start: the failure of the encyclical to achieve a clear focus on the resurrection and its tendency to put the cross in its place, central to the salvation history of life but unrelated to the phenomenology of death. Now I can suggest a reason for this. John Paul’s failure, on the side of civil justice, to identify the link between judgment and mortality is reflected in a failure, on the side of death, to link mortality and judgment. Politically we have justice without death, anthropologically death without judgment….

The symbolic links of judgment and execution stand at the heart of what we understand about Christ’s reconciling death. We may be rid of ordinary uses of the death penalty in most Western states; I am glad to live in one where we are. We may one day be rid of it elsewhere, in Third World countries, Muslim societies, and so on. If we can achieve that responsibly, it will be a fine achievement – though we must be on our guard against irresponsible, crusading attitudes which fail to take the context (legal, economic, social, and moral) seriously. But we cannot be rid of the symbolic role that the death penalty plays in relating death to judgment. There will always be a death penalty in the mind – if, that is, we are all to learn to “die with Christ,” understanding our own deaths as a kind of capital punishment.

Oliver O'Donovan, "The Death Penalty in Evangelium Vitae," in Ecumenical Ventures in Ethics: Protestants Engage Pope John Paul II’s Moral Encyclicals, eds. Reinhard Hütter and Theodor Dieter (Eerdmans, 1998), 213–36 .

August 3, 2018 in Moreland, Michael | Permalink

Mark Helprin on Gov. Cuomo at ND and the "Guillotine of Sophistry"

This is a hard-hitting but, I think, devastatingly on-point evaluation of the "personally opposed but . . ." approach to abortion-regulation that Gov. Cuomo proposed in his 1980s Notre Dame speech and that so many others have adopted since.  A taste:

 

[L]ike Mario Cuomo[,] . . . they claim to be “personally” against abortion, but would leave it up to “a woman and her doctor.” This assumes the division of oneself into personhood, and what else? Granted, one would not want to force into law one’s personal preference or distaste for or against, let’s say, chipotle peppers or disco music, but to treat abortion as a matter of inexplicable, anachronistic religious doctrine; arbitrary preference; or capricious taste is to demonstrate conceptual blindness or bottomless moral cowardice.

If an unborn child were not, as in fact it is slightly more than half the time, of a different sex than the mother; if it did not have a completely different and unique DNA; if it were not viable from the start and would not survive to term and then, statistically, for 80 years more thereafter given only the absence of an act of destruction; if abortion opponents were consistent in using the emotive, Anglo-Saxon word woman and not switching to the Latin fetus instead of baby or child; if the stupidity of the question “When does life begin?” was not affirmed by the fact that the sperm and the egg are alive before the question is unnecessarily formulated; if only one body, not two, gave rise to the conflict; if in common and statute law there were not long-standing strictures upon what we may do even with our own bodies; and if the destruction of one’s progeny were not contrary to every biological imperative, decent human impulse, and civilized principle, only then—and perhaps not even then—the question would not be, is this the taking of an innocent human life, or is it not?

August 3, 2018 in Garnett, Rick | Permalink

Notre Dame, McCarrick, Cosby, Obama and the Revocation of Honorary Degrees

McCarrick and victim

 

There is a movement underway at a number of Catholic universities that seeks to have these institutions revoke the honorary degrees that they conferred upon Theodore (“Call me Uncle Ted”) McCarrick, the now disgraced Archbishop Emeritus of Washington, D.C., and former member of the College of Cardinals.  Last week Pope Francis accepted McCarrick’s resignation from the College, ordered him to refrain from exercising his priestly ministry in public, and instructed him to live a life of “prayer and penance.” This followed on the heels of the Archdiocese of New York’s finding that allegations that McCarrick abused a 16 year old altar boy in 1971 and 1972 to be “credible and substantiated” (see here and here).  Since then, a host of allegations have surfaced (some, apparently, having been known and shared among church-insiders for years) that McCarrick was not only a priestly figure who molested teenagers, but a man of power who led a life of dissipation, frequently inviting seminarians and young priests to parties at his beach house on the Jersey shore, where they were also invited to share his bed (see here; Rod Dreher’s reporting has been especially good, see here, here and here).

In light of these developments, Fordham University and the Catholic University of America (see here and here) have rescinded the honorary degrees they once gleefully bestowed upon McCarrick. This is in keeping with a trend among American universities in the wake of the #MeToo movement which has seen Sewanee and Fordham revoke the honorary degrees they conferred upon Charlie Rose (see here and here), and over twenty institutions rescind the degrees they awarded to Bill Cosby (see here).

The University of Notre Dame was among those schools that decided to disassociate itself from Bill Cosby.  In announcing the move (see here), Notre Dame President Rev. John Jenkins, C.S.C. assured the Notre Dame community that “[w]hile certainly troubled by serious, public accusations made by multiple women against [Cosby], the University elected to wait until due process had been afforded the accused, and a verdict delivered, before rescinding the honor.”

In response to the revelations concerning McCarrick, some Notre Dame alumni questioned whether the former cardinal’s degree (here) would likewise be revoked (see here).  Father Jenkins issued a statement (here) explaining that while the University finds the “alleged actions reprehensible” it “recognizes that McCarrick maintains his innocence and that a final decision in the case will come only after a canonical trial in Rome.”

But the decision to revoke Bill Cosby’s degree and the decision to forego rescinding McCarrick’s degree (at least for the time being) both raise an important question:  Why should the University rescind these public honors in the first place?  After all, we were told by no less an authority than Father Jenkins that bestowing such a degree does not constitute a statement of approval of all that the person has done or said.  Indeed, in defending his decision to honor President Obama in 2009, Father Jenkins insisted (here) that the award of an honorary degree “has never been a political statement or an endorsement of policy.“  Instead, the honorary degree bestowed on Mr. Obama reflected “the University’s expression of respect for the leader of the nation and the Office of the President.”  

But by the same logic McCarrick should continue to be an honorary Domer.  The University had no knowledge of McCarrick’s perverse conduct when it bestowed the degree (presumably), and now the degree continues to reflect the University’s respect for the leader of a great diocese and the office of bishop.

Many in the Notre Dame community found Father Jenkins’ defense of his decision to honor Mr. Obama wanting, but some explanation was surely necessary given Mr. Obama’s well-known public support for the abortion license through all nine months of pregnancy and beyond (i.e. in the Illinois legislature he rejected measures that would have mandated care for children that survive abortion).  Indeed, Mr. Obama’s stance on abortion was not nuanced.  His preferred policy plainly contradicted the Church’s teaching regarding the inviolability of unborn human life and the need for the law “to preserve each person’s rights and to protect the weakest” (see here).  Even if Father Jenkins did not fully appreciate the depth of Mr. Obama’s commitment to preserving and expanding the legal right to kill unborn children in the womb (a highly dubious suggestion given Father Jenkins’ eminent intelligence), he must have recognized this during the subsequent eight years during which Mr. Obama zealously sought to advance that policy at home and abroad.

So now, if I understand this correctly, the standard that Notre Dame employs in deciding to revoke an honorary degree that the University now thinks was wrongfully conferred is the conviction of the degree-recipient in a court of law (or similar tribunal) for serious crimes, provided that due process has been observed?  And that subsequent conduct in support of an “unspeakable crime” (here) that harms the innocent and undermines the common good isn’t grounds for revoking an honorary degree, but discovery of past sinful conduct that harms the innocent and undermines the common good may be grounds for revoking an honorary degree?

Isn’t it marvelous how this standard can justify the revocation of the Cosby honorary degree, leave the door open to revoking the McCarrick honorary degree (while virtue signaling the University’s disapproval of pederasty), and avoid apologizing for a degree that should never have been given in the first place!   And isn’t it remarkable that this standard would appear to align perfectly with how Notre Dame perceives its appeal to the preferred donor class!

The lesson being learned in all this – in the conferring and in the taking away of honorary degrees – is a lesson that is as true for institutions as it is for individuals: One is known by the company one keeps.

 

Obama cecile richards

August 3, 2018 | Permalink

Thursday, August 2, 2018

Killing, Catholic Tradition, and the Law on Capital Punishment

A quick thought following today’s announcement from the Congregation for the Doctrine of the Faith that Pope Francis has approved a revision to Section 2267 of the Catechism of the Catholic Church.

Not much attention has been paid to the text of the letter from the CDF, which warrants a close reading. At Paragraphs 8 and 10 of Cardinal Ladaria’s letter, he states:

8. All of this shows that the new formulation of number 2267 of the Catechism expresses an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium. These teachings, in fact, can be explained in the light of the primary responsibility of the public authority to protect the common good in a social context in which the penal sanctions were understood differently, and had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.

….

10. The new formulation of number 2267 of the Catechism of the Catholic Church desires to give energy to a movement towards a decisive commitment to favor a mentality that recognizes the dignity of every human life and, in respectful dialogue with civil authorities, to encourage the creation of conditions that allow for the elimination of the death penalty where it is still in effect.

Much of the reaction on Twitter and elsewhere seems to be over whether the Pope is “changing” Catholic teaching, breaking with a long tradition in favor of the permissibility of the death penalty, and opening the door to all manner of mischief under the guise of doctrinal development. I think a better way of framing the question and to have a reasonable debate in light of the Church’s moral tradition is to note that the permissibility of the death penalty was understood (by Aquinas, for example) as an *exception* to an otherwise absolute norm against intentional killing, based on an understanding of the dignity of all human life. Summa Theologiae, II-II.64.7 (“As it is unlawful to take a man's life, except for the public authority acting for the common good…it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self-defense, refer this to the public good.”).

And so the question becomes whether Aquinas (or anyone else in the Catholic moral tradition right up to today) can carry off a justification for such an exception—are there ends (pertaining to the common good, public order, and safety) that justify the use of what would otherwise be a forbidden means (intentional killing)? On that question, the prudential weight of doctrinal authority (over the past several pontificates) has swung from in favor (as in Aquinas) to against such justifications, and that is (merely?) what the CDF’s letter and the revision to the Catechism reflects. In at least this respect, then, the revision to the Catechism reflects and deepens the moral principle that one may not do evil that good may come. See John Finnis, Aquinas: Moral, Political, and Legal Theory at p. 282 (“Aquinas therefore fails to reply convincingly to the argument that capital punishment, since it involves the intent to kill as a means, is “doing evil that good may come,” i.e. the pursuit of a good end (the restoration of the order of justice) by inherently immoral means.”).

A final brief note: it is a separate (but timely!) question how, say, a federal judge who is Catholic and accepts that the Catechism is a “sure and authentic reference” (John Paul II, Fidei Depositum IV) regarding Catholic doctrine should understand his or her responsibilities in death penalty cases. A reasonable answer to that question, it seems to me, is that the Constitution (absent an implausible reading of the Eighth Amendment to prohibit capital punishment) leaves the resolution of the death penalty’s permissibility to the political branches and that the judicial role requires an impartial application of what the positive law provides as to criminal punishment.

August 2, 2018 in Moreland, Michael | Permalink

Monday, July 23, 2018

Pakaluk on "The Seton Option: Catholic Schools and Good Citizens"

I highly recommend this short piece, by Prof. Catherine Pakaluk, on (inter alia) Catholic schools, mediating institutions, Pius XI, and democratic citizenship.  (Among its virtues is its consonance with some papers of mine on the subject!  See, e.g., this and this.)  Check it out!  

July 23, 2018 in Garnett, Rick | Permalink

Vermeule on liberalism, post-liberalism, and hope

Some characteristically engaging thoughts from our own Adrian Vermeule ("According to Truth") have been posted at The Josias, here.  Here's just a bit:

Liberalism muffles the political in second-order concepts like “civility” and “tolerance” and “choice,” and the hunger for real politics rightly rebels against this. But it does not follow that these concepts have no value at all, when rightly placed within a larger ordering to good substantive ends. If civility, tolerance, and their ilk are bad masters, and tyrannous when made into idols, they may still be good servants. . . .

Check it out!

July 23, 2018 in Garnett, Rick | Permalink

Tuesday, July 17, 2018

Time to Flourish: Protecting Families' Time for Work and Caregiving

The Center for Public Justice (CPJ), just released a powerful report:  “Time to Flourish: Protecting Families’ Time for Work and Caregiving”, as part of  CPJ initiative called Families Valued "that advances workplace practices and public policies that honor both work and family care".  CPJ is "an independent, nonpartisan organization devoted to public policy research and civic education with a distinct theological lens. Working outside the familiar categories of right and left, conservative and liberal, the Center for Public Justice seeks to help citizens and public officeholders respond to God’s call to do justice." 

The report is an elegant brief for the need to address the deplorable lack of support for family life in this country. It draws on a wide spectrum of Christian theological sources, but offering concrete, contemporary examples of the problems, as well as practical suggestions for policy changes.  An Op Ed in today's Christianity Today by one of the co-authors expresses the hope that the some recent indications of bipartisan support expressed at a recent Senate subcommittee hearing on paid family leave (including a proposal championed by Ivanka Trump) might lead to some changes.  Hear, hear!

July 17, 2018 in Schiltz, Elizabeth | Permalink

A strong pro-life editorial on the Kavanaugh nomination from America

I really appreciated this strong editorial from America, "Anyone who recognizes the humanity of the unborn should support the nomination of Judge Kavanaugh."  It concludes with this:

If Roe is overturned, continued Catholic advocacy for a comprehensive medical and social safety net for expectant mothers will be crucial in order to save lives and render abortion an even less appealing choice to the public conscience. At this juncture, anyone who recognizes the humanity of the unborn should support the nomination of a justice who would help return this issue to the legislative arena. Overturning Roe would save lives and undo a moral and constitutional travesty.

July 17, 2018 in Garnett, Rick | Permalink

Thursday, July 12, 2018

Catholic Sorting

On Facebook the other day, I wrote (I think it was a conversation with Rick!) that the Catholic parishes had preserved a greater element than Protestant congregations of bringing people together across political/cultural divides, because the parishes are more geographical and you don't have the menu of options (like Protestants) do to fit your personal taste. Of course, then I read this.

"As traditional parishes decline, 'personal parishes' find new interest" (National Catholic Reporter)

       Increasingly churchgoers are bypassing neighborhood parishes in favor of faith communities that deliver what they are seeking.

       Catholic bishops are recognizing the phenomenon and are increasingly willing to designate "personal parishes," communities formally recognized by bishops for particular groups of Catholics versus traditional parishes which minister to Catholics in a geographic territory.

July 12, 2018 in Berg, Thomas, Religion | Permalink

Wednesday, July 11, 2018

Living in a Full World But Being Empty

From the time that I first learned to read, I fell in love with science fiction and fantasy. Before I was out of elementary school, I had devoured the “Lord of the Rings” trilogy, not even aware that it was the subject of literary studies in college. The greatest works of this genre are not merely an escape from the pedestrian real-world, but give us a new perspective on our human psychology and culture from a completely alien (sometimes truly, alien) perspective.

I’ve been watching the conclusion to the multi-year series, “12 Monkeys” on television over the past week. The story follows the common pattern of time-travel and a future post-apocalyptic world, but adds the distinct twist of an antagonist who seeks to end time altogether by deliberate paradox so as to be able to abide forever in favored moments. 12monkeys

The script is amusing and, at times, profound.  I was particularly taken in the closing episodes by the following line, which I’ve slightly rewritten below. This  character grew up in the ruins after a virus had killed nearly everyone, struggling to survive, even to find food and avoid violent death. She ends up being transported back through time to a period close to our modern day in New York City. Based on her observations of urban Americans, especially those in their teens and twenties who seem always to be wedded to their cell phones, she offers this damning summation:

"They have everything, all the time, but see nothing. Their world is full, but they are empty."

Let us pray that we will always be the witness for something more, so that those around us may seek a full soul, rather than the emptiness of a world.

July 11, 2018 in Sisk, Greg | Permalink

Nagy and Woodward on Keeping -- and Losing -- the Faith

The latest issue of Notre Dame Magazine (which is, I have to say, head and shoulders above any University/alumni magazine I've ever encountered) has essays by, inter alia, John Nagy and Kenneth Woodward on keeping, and losing, the Faith.  Both draw heavily on the work of my friend and colleague in sociology, Christian Smith.  These are not, strictly speaking, "legal theory" pieces, but they do prompt thinking about the ways that culture (which is, of course, shaped by law even as law is "downstream" from culture) creates the conditions and context within which the Faith either is, or is not, transmitted and in which young people are formed.

Here's just a bit from Nagy:

Here’s the core of Smith’s findings: The religious identity that young Catholics establish as children living in their parents’ homes is probably what they’ll carry with them through life. One’s faith practices remain stable from childhood into adulthood. Less frequently, they decline. Late bloomers are a rare third, religiously speaking. The point is that most Catholic kids aren’t going to Mass now and they won’t start when they’re older. 

Interesting, though, is what your generation hasn’t lost. Other studies of trends in American religion have found that, churchgoing aside, people your age retain their wonder, their spiritual wellbeing, their belief that life has meaning and purpose — at levels indistinguishable from their parents and grandparents. Smith disagrees with some of that but notes that you all are slightly more likely to pray daily, to believe in an afterlife, to affirm the Bible’s sacred character. That doesn’t mean you’re reading it, or getting to know the God who is revealed in it. Which means your friends are less and less inclined to talk about religion, the sacred, the eternal — or even life’s purpose — in articulate and meaningful ways. 

That to me suggests we’re losing something essential to what it means to be human — and that’s why I worry. . . .

July 11, 2018 in Garnett, Rick | Permalink

Tuesday, July 10, 2018

Implications of the Umpire Analogy in Judge Kavanaugh's Scholarly Writing

Judge Brett Kavanaugh's scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial "neutrality." I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.

For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann's book on statutory interpretation), he wrote: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges." Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: "I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.

It's a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change. 

Statutory Interpretation

Kavanaugh's primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries--clear or ambiguous--to settle on. Kavanaugh argues that in consequence a judge's predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it's off and running with the substantive canons of interpretation.

Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her "best reading of the statute," guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms ("dogs, pigs, sheep, and other animals" should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that "other animals" should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the "common denominator." But I'm not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh's "best reading of the statute" approach, one which he agrees must make use of context.

The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply "finding" clarity/ambiguity, of the judge's predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public. 

Constitutional Interpretation

Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, "rather indeterminate," and at worst, "empty of real, determinate, objective meaning." They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are "mood-setters." And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.

Or consider the issue of exceptions to certain constitutional rights--the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral--non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas's dissent in Whole Woman's Health v. Hellerstedt). But one can see a critical unity in Kavanaugh's objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.

Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: "At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases." And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised "history and tradition," together with "precedent," as important for his judicial method in his acceptance last night.

We'll have to wait and see if and how these threads come together if he is confirmed.

July 10, 2018 in DeGirolami, Marc | Permalink

A last gasp of support for Barrett at CNN...before all behind Kavanaugh

CNN asked me to weigh in on President Trump's pick last night. Here's the full commentary. (Glad for the many conservative voices who  know Judge Kavanaugh much better than I; and glad they asked me as a counter-weight to voices from Planned Parenthood and NARAL.)

Here's what I said: 

I have to admit it: I was hoping President Trump would choose Judge Amy Coney Barrett. Brilliant, courageous, and quick on her feet, the professionally and personally esteemed mother of seven puts to rest -- in her very person -- the central pro-choice feminist assumption that bearing and raising children impedes women's serious engagement in professional and public life.
 
She would have brought true diversity to the Court on the most rancorous constitutional issue of our day, underscoring how an intellectually astute woman need not acquiesce in the unquestioning abortion rights dogma that has held the cause for women's rights hostage for far too long now. And she would have been able to make the case the best way possible: debunking the sham legal reasoning that has upheld the putative right for decades by day and blazing an alternative path with her family by night.
 
Comparatively, President Trump played it safe: Judge Brett Kavanaugh is a legal all-star, an accomplished jurist, and a darling of the conservative judicial establishment; he can be trusted by friend and foe alike to interpret the Constitution as it is written. A solid constitutionalist, Kavanaugh will join those on the Court who are deeply skeptical of its current (internationally extreme) abortion jurisprudence. But with Kavanaugh rather than Coney Barrett, the optics do not bode nearly as well.
 
Should the President have another chance, and should that chance come in the form of the retirement of an aged Justice Ruth Bader Ginsburg, Trump should pull the trigger and nominate Coney Barrett. Our country desperately needs the opportunity to debate not only abortion, but to see how the autonomy feminism Ginsburg has long represented should pass away with its most cherished leader.
 
A dignitarian feminism, by contrast, would recognize both that women and men are of equal dignity and are duly encumbered by their shared responsibilities to the vulnerable and dependent -- in their own families and in the community at large. Coney Barrett would not only serve the Constitution better than most jurists of our time; she would reveal, by the very integrity of her life, a more dignified way forward.

 

July 10, 2018 in Bachiochi, Erika | Permalink

Monday, July 9, 2018

About those Planned Parenthood ads . . .

As some MOJ readers have noticed over the years, sometimes the ads that pop up on our site are ones that don't seem to fit very well with the mission and character of this blog.  Most recently, several readers have informed me that they have seen various "donate to Planned Parenthood" ads when they visit.

I hope it goes without saying that we do not select or endorse those ads.  The ads a reader sees are a function of that viewer's own web activity and the content of the site in question. (So, because abortion is often discussed at MOJ, and many MOJ readers probably read about issues connected to abortion, the Court, judicial nominations, etc., the Algorithms in the Sky put up Planned Parenthood ads.)  We are not able to block, ex ante, particular advertisers.  

But . . . viewers can!  Click on "ad choices triangle" in a particular ad and simply clicking on the "X" will let you tell Google that you don't want to see that particular ad anymore.  We are sorry for the inconvenience.

July 9, 2018 in Garnett, Rick | Permalink | Comments (0)

Sunday, July 8, 2018

Trump and Religious Freedom: Short-Term and Long-Term

Late last week in a rally, President Trump dissed George HW Bush's "thousand points of light" phrase, which Bush used in the 1988 campaign as an image for volunteerism for the common good in a civil society:

"What the hell was that, by the way, thousand points of light? What did that mean? Does anyone know," said Trump. "I know one thing: Make America Great Again, we understand. Putting America first, we understand. Thousand points of light, I never quite got that one."

Commentators focused on how Trump's riff was mean to HW. But it and other riffs like it are harmful to religious freedom. Granted, Trump's Supreme Court picks are more likely than those of other presidents (e.g. HRC) to take religious freedom seriously across the range of applications; that's a major reason, it seems, why evangelical Christians supported him. (All of the short-listers for the new seat give strong indicia of supporting religious freedom. And I say this even though I strongly believe the Court dropped the ball on the travel ban--because my guess is these nominees will be pretty strong on Muslim freedom outside the immigration context.) 

But however significant the short, even medium, -term benefit to religious freedom from a Court appointment, one must also reckon with the long-term harm to religious freedom that Trump has done by encouraging the undercutting of many of the reasons a society would care about protecting religious freedom. Last week's riff dissed the very concept of serving the common good through a plurality of institutions in a diverse civil society. Trump is beckoning conservative Christians, especially evangelicals--who seem to be quite willing to follow his pied piping--to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others. That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.

This point is an application not only of multiple Mike Gerson columns, but also of Marc and Kevin's fine Times op-ed of last week. The culture will matter in more pervasive, long-lasting ways than the new justice(s). And evangelicals are risking collaborating with Trump in irreversibly degrading their own culture.

July 8, 2018 in Berg, Thomas, Current Affairs | Permalink

How to lose credibility by making a fair point in an unfair way, Michael Sean Winters on Amy Coney Barrett edition

Michael Sean Winters recently made a fair point in a snide and sloppy way. The end result was to illustrate a different point entirely.

The fair point-- better put here by Rick Garnett last fall--is that "it is not inappropriate for senators to question judicial nominees ... about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role."

The point Winters actually illustrated, though, is that he cannot be trusted to fairly represent contemporary Catholic legal thought about American constitutional law.

Winters's post is a gallimaufry of ill-informed opinion about legal matters, en passant slimes of people and groups, and intramural Catholic posturing. It does not proceed analytically, but moves on to another point before it finishes developing the argument for a particular assertion. And sometimes there is no argument to be found. In what follows, I address two of Winters's main points as I can best reconstruct them and then explain why the framework he uses is unfortunate.

My two main points in response to Winters are (1) that Barrett's religious affiliation does not put the burden on her to counter a presumption that she lacks independence, and (2) that Winters does not understand originalism and textualism very well. As to the framework, it is regrettable that Winters uses Barrett's potential nomination principally as a vehicle for Catholic intellectual infighting.

 

1. Membership in People of Praise is not prima facie evidence of a lack of sufficient judicial independence. 

In discussing how others have covered Barrett's membership in People of Praise, Winters writes that "it would be irresponsible not to ask questions about the independence we want in a judge, independence that membership in this group would seem to preclude." Take a look at that last clause. A fair reading is that Winters believes "membership in [People of Praise] would seem to preclude" Barrett's possession of "the independence we want in a judge."

This charge is very serious. Yet Winters offers precious little argument or evidence in support. It would be helpful to know if he actually believes it.

Winters offers no reason to think that People of Praise's distinctive beliefs and practices include distinctive beliefs about how Catholic faith informs one's performance of the judicial role. Indeed, Barrett's co-authored article on this issue written twenty years ago is a model of engagement with the Catholic intellectual tradition on this topic. (Incidentally, that article is about cooperation with evil in the death penalty context, not what Winters dismissively describes elsewhere in his post as "issues of pelvic theology.")

The most charitable reading may be that Winters was just being careless here. Perhaps he was making the narrower point that it's reasonable to inquire into the beliefs and practices of a religious group to which a nominee belongs.

A clue that this may be so comes in his first-person declaration: "I am not sure how similar Barrett's life is to 'millions upon millions' of her fellow Catholics: Some of what I know about the 'People of Praise' gives me the willies." This reminded me of Senator Feinstein's "very uncomfortable feeling" about Barrett (and Winters's scare quotes are a nice touch). Feinstein knows many Catholics, like her colleagues Richard Durbin and Tim Kaine, and she seems totally comfortable with them. Barrett, though, seemed different.

Nobody should have a problem with asking a nominee questions about her understanding of the relationship between her religious beliefs and practices and her judicial role. But it's much more of a problem--deplorable, one might say--for Winters to justify those questions by reference to his (or anyone else's) "willies." 

 

2. Originalism and textualism are not "a kind of textual idolatry akin to Martin Luther's sola scriptura approach to the Christian faith, [or] a fundamentalist hermeneutic akin to the Rev. Jerry Falwell's understanding of how to interpret the Bible."

Winters is woefully underinformed about originalism and textualism. The principal merit of his hyperlinked source for defining originalism--a poorly sourced aggregation of content I've never heard of before--is that it may have shown up high in search engine results. I cannot get back into that source without registering, but I can at least report that Wikipedia's entry on originalism is much better.

Wikipedia, too, has its limits, of course. And there are deep theoretical debates about originalism, including arguments about just how representative of originalism Justice Scalia's constitutional law corpus may be. But Winters's assertion that "Scalia's theory has not even a passing similarity with our Catholic intellectual traditions" is easily falsifiable. For readings on the relationship between the Catholic intellectual tradition and originalism, I recommend Lee Strang, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, and my co-authored piece with Jeff Pojanowski, Enduring Originalism. Even better for those on a tighter time budget is Pojanowski's 7-pager, Why Should Anyone Be An Originalist? (Short answer: Because it's a practically reasonable way of achieving the kind of benefits that the positive law of a written Constitution offers.)

Strang, Pojanowski, and I are admittedly just a few legal scholars trotting out teleological reasoning in theoretical arguments about originalism's jurisprudential foundations. But as far as I'm aware, nobody has taken issue with the claim Pojanowski and I have made that "[f]ar from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law’s moral purpose animated the framers’ understanding of our Constitution." The dispute, instead, is instead largely about whether that tradition "provides the most persuasive reason for continued adherence to that original law today."

And contrary to the impression conveyed by Winters (in which Scalia seized on originalism to combat "Blackmun's [sic] penumbras"), neither originalism nor textualism has a necessarily conservative or Catholic inflection. If any particular camp is ascendant in originalist legal theory today, it is probably the libertarians'.    

There's much more I could say on these points. But better to save serious analysis for someone who first makes a serious effort to understand what he's trying to take on.

 

3. Winters's beef is much more with "the conservative Catholic legal establishment" than with Barrett herself.

When I studied for my Theology M.A. at Notre Dame two decades ago, most of my classes were in the Theology Department. But I also participated some in the intellectual life of the law school and took John Finnis's class on Aquinas there.

It was hard back then not to miss two big divides.

One was in the theology department itself, with respect to American Catholicism. Roughly speaking, this was a divide typified by Michael Baxter on the one hand and Richard McBrien on the other.

A second divide was between moral theologians in the theology department and people involved with the legal aspects of some of these issues in the law school.  The divide was not neat, for I learned a lot about the intersection of morality and politics not only from Finnis but also, and more so with respect to American constitutional law specifically, from Cathy Kaveny (now at BC). 

I mention these biographical notes because they shape the personal perspective I bring to Winters's post, which includes an awareness of the various fissures and tensions among Catholic intellectuals addressing the role of Catholics in American public life. 

When understood as the latest volley in an ongoing intra-Catholic skirmish, one can understand why such skirmishing is so regrettable. Barrett is made to bear the brunt of attacks that ought to be aimed elsewhere.

And some of it is downright offensive. Consider, for instance, Winters's discussion of how Barrett "is  a product of, and has been groomed by, the conservative Catholic legal establishment." Sure. When she hit it out of the park academically as a law student at Notre Dame, that was just her being groomed. Her impressive scholarship? Grooming also. 

"Having been groomed" by the "conservative Catholic legal establishment," Winters writes, Barrett is "now the face of that establishment." It's too bad that's the way Winters sees it and wants others to see it.

Too bad is how I see it, anyway. And I bet I'm not far removed in this regard from the Catholic outlook that informs Persons and Masks of the Law.

Shouldn't we try instead to see Amy Coney Barrett's as the face of a real person with a history, intellect, and will of her own?

July 8, 2018 in Walsh, Kevin | Permalink

Saturday, July 7, 2018

The Talking Cure (once again)

In light of its pertinence again--it's an issue that never seems to go out of style--and what I believe to be a prototypically "Response One" form of engagement in the column Rick links to below, I'm reposting this from seven years ago (I'm old now) on the unavoidable shallowness of inquiries about religion for political ends.

***

Jacques Lacan’s famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject’s hangups and mental infirmities, came to my mind during the recent exchange between Rick Garnett, Paul Horwitz, Rob Vischer, and others (see here) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions.  Yesterday, as my colleague Mark notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.

But I had a thought that may strike some as perhaps a little heterodox.  I want to make a point in (partial, limited) defense of the Rortian “religion as conversation-stopper” view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago). When candidate X claims that she is informed in her thinking about political issue Y by her religious beliefs and traditions, this is sometimes (not always, but often enough) not the sort of claim that can be understood thoroughly by the public through thorough public discussion, stimulated by extensive question and answer sessions devised by journalists otherwise hostile to the candidate’s political position. What is more likely to happen is that religion — whether the candidate’s or not — will be used as a kind of instrument through which the journalist’s political orientation can be reaffirmed and re-cemented.

Two points are often heard against this view, which I’ll call Response One and Response Two. Response One is that this is the candidate’s own fault. She, after all, is using religion for political advancement of one kind or another. Why is it not then fair to use religion to knock her down — to erase the political advantage that she has gained, and to strike political blows against her to boot?  The candidate did not have to mention religion; but now that she has, religion is “fair game.” Response Two is that engaging with the candidate’s religious views takes religion and the candidate herself seriously — it engages in discursive good faith with the candidate.  We do not say to the candidate, “You have improperly introduced a forbidden subject into the political exchange.”  We say instead, ‘We want to understand you, and since your religious tradition seems to be important enough to you that you raise it to explain, or ground, or at least situate your position, we would like to probe your religious views by the medium of public discourse. We’d like to understand your view, which you’ve informed us is religiously grounded, by talking through it to see if we find it persuasive. Talking will help.”

I want to examine the responses in turn. Response One is motivated by an adversarially political aim, and it seems to me that it is a true reflection of the way in which political discourse is conducted.  That is because political discourse is, fundamentally (though of course not universally), shallow.

Continue reading

July 7, 2018 in DeGirolami, Marc | Permalink

A Strange Defense of Sen. Feinstein et al.

Michael Sean Winters has re-upped his (partial) defense of the line of questioning to which (my friend and colleague) now-Judge Amy Barrett was subjected by several under-informed members of the Judiciary Committee last year.  Barrett is, of course, an intelligent and accomplished lawyer, scholar, and teacher but Winters apparently now sees her (for reasons that are not provided) as the "face" of the "conservative Catholic legal establishment", an "establishment" that is "responsible" for the "deformation of the Church's public witness."

I'll pass over Winters's criticisms of Justice Scalia and what he takes to be "originalism" and leave it to others, such as our own Kevin Walsh, to provide a clarifying response (or perhaps just a reading list!).  For now, just two things:  First, Winters is, I believe, attacking a straw man when he suggests that those of us who were critical of Sen. Feinstein etc. objected to questions either about the law-review article she co-authored (about the obligations of Catholic judges in capital cases) or about her commitment, more generally, to decide cases in accord with the relevant law (rather than religious commitments, or anything else).  As I (and others) have said before, such questions -- so long as they are not ignorant, so long as they are offered in good faith, and so long as they do not presume that Catholics are less able than anyone else to perform the judicial duty -- are fine.  But, again, these are not the questions that were asked.  The President of the University of Notre Dame, Fr. John Jenkins, had a better interpretation and evaluation of the business than the one Winters provides.

Next, Winters accuses me of an "intellectual sleight of hand" for writing this:  "The senators would not have asked — and the senators' defenders would not have tolerated — repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they)." Winters says:

The blog Mirror of Justice says it is dedicated to "the development of Catholic legal theory." Even if there were a Muslim or Sikh equivalent, there are not five Muslims on the Supreme Court and there are no Sikh-sponsored universities with laws schools as we Catholics proudly boast, so the comparison does not ring true.

I do not see the "sleight of hand" here and am not sure what relevance the fact that MOJ is dedicated to "the development of Catholic legal theory" has to the charge.  Nor is it clear why the fact that there were five Catholics, and no Muslims, on the Court somehow undermines the point that "repetitive and badgering questions" of the kind asked by Sen. Feinstein et al. are inappropriate - whether directed at Catholics, Muslims, Sikhs, or anyone else.

July 7, 2018 in Garnett, Rick | Permalink | Comments (0)

Friday, July 6, 2018

Justice Kennedy’s Best First Amendment Opinion?

Before the chaos surrounding the confirmation of his successor gets underway next week, a look back at the legacy of Justice Anthony Kennedy. Safe to say he will most be remembered for the series of cases involving LGBT rights from Romer v. Evans in 1996 through Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges in 2015. He was in the middle of the Court on abortion, upholding the core of Roe v. Wade in the plurality opinion in Planned Parenthood v. Casey in 1992 while writing an opinion upholding restrictions on abortion in Gonzales v. Carhart in 2007. And he wrote important decisions on federalism questions, notably Boerne v. Flores involving Congress’s power to enforce Section 5 of the Fourteenth Amendment and Alden v. Maine regarding state sovereign immunity.

He also had an outsized influence in First Amendment law, both as to freedom of speech and the Religion Clauses: e.g., Citizens United v. FEC, Town of Greece v. Galloway, Lukumi Babalu Aye v. Hialeah, Sorrell v. IMS Health, and, most recently, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But what was Justice Kennedy’s best First Amendment opinion (“best” here just meaning my own subjective judgment blending together lasting doctrinal importance with soundness of result and analysis)?

My candidate: Rosenberger v. Rector & Visitors of the University of Virginia (1995). Recall that Rosenberger was about whether UVA could deny student activity funding (specifically payment for printing costs) to a Christian student publication as part of a policy that denied such funding to “religious activities.” UVA defended the policy on the grounds that there was no content or viewpoint-based restriction on speech in the policy and that the policy was required by the Establishment Clause (the case was argued by two academic luminaries--Michael McConnell for Rosenberger and John Jeffries for UVA). Writing for a 5-4 majority, Justice Kennedy held that the denial of funding was an unconstitutional violation of free speech that complying with the Establishment Clause did not excuse.

I won’t try to summarize all of the twists and turns in Rosenberger, but here are briefly what seem to me the two most important and lasting aspects of Justice Kennedy’s opinion:

1. Rosenberger placed an equality norm at the center of cases about religious speech and government funding of religious activities. Justice Kennedy’s opinion in Rosenberger doubled down on the Court’s equal access cases such as Lamb’s Chapel and refused to allow religion as a category to be treated distinctly or suspiciously when the state regulates expression or provides public benefits (seen most recently in Trinity Lutheran v. Comer). This comes about in Rosenberger through two moves in free speech doctrine: deeming the provision of funding by UVA a public forum (though more in a “metaphysical than in a spatial or geographic sense”) and holding that the exclusion of religious perspectives is unconstitutional viewpoint discrimination. And even though some cases (notably Locke v. Davey and CLS v. Martinez) might be hard to square with what I’m calling Rosenberger’s religious equality norm, Rosenberger still put that concern on a new footing.

2. Rosenberger marked an important departure from the Establishment Clause separationism of the 1970s and 80s in cases such as Lemon, Nyquist, and Aguilar. Of course, the issue in Rosenberger was in a sense the converse of the usual Establishment Clause funding case, i.e., not “may the government fund religious activities?” but “must the government not fund religious activities?” Justice Kennedy’s opinion states that so long as a program is neutral toward religion, the Establishment Clause does not require (let alone excuse) viewpoint-based restrictions on religious speech: “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” And so while the Establishment Clause discussion in Rosenberger is subsidiary to the free speech claim, it also foretold the Court’s move away from strict separationism in later cases such as Agostini v. Felton in 1997 and Zelman v. Simmons-Harris in 2002 (which characterized Rosenberger as “involv[ing] an individual and insubstantial use of neutrally available public funds for a religious purpose”).

May Justice Kennedy enjoy many happy years in retirement—and with our gratitude for Rosenberger v. UVA.

July 6, 2018 in Moreland, Michael | Permalink

Thursday, July 5, 2018

Judge Amy Coney Barrett

Here's a short reflection I wrote regarding my friend and colleague, Judge Amy Coney Barrett, who is (apparently) being considered to replace Justice Anthony Kennedy.  The bottom line (as I see it):

Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.

July 5, 2018 in Garnett, Rick | Permalink

Wednesday, July 4, 2018

Roe will probably be reversed even further than before; the real combat is over Casey.

Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.

As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.

Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.

* * *

Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.

Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version." 

The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.

The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.

The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.

* * *

The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.

It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.

This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.

* * *

Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.

July 4, 2018 in Walsh, Kevin | Permalink

The Blanshardians in our midst

Current events in our nation's capital make this Independence Day an especially opportune occasion to observe that Blanshardism is not finished.  By Blandshardism I mean, of course, the activities of those who believe what wrote in his best-selling book, American Freedom and Catholic Power nearly seventy years ago: "the Catholic problem is still with us." Albert Einstein, Bertrand Russell, and McGeorge Bundy were among the books most famous fans.  Following their master's lead, contemporary Blanshardians echo his call for a "resistance movement" to Catholics' "antidemocratic social policies."  A catalogue of Blanshardian grievances against Catholics and their Church is at hand in an article (here) I wrote several years ago. The article closes with Blandshard's agreeing with Hilaire Belloc that holding and adhering to the Catholic view of things about how this world is to be arranged and governed ensures "monstrous conflict" with those who prefer a state that is the agent of "the new morality" (a term I borrow from Edward Rubin). 

Of special salience in light of the aforementioned current events is the Blanshardian dogma that "overpopulation" encouraged by Catholic doctrine regarding human sexuality presents "the most basic and formidable threat to the future happiness of the human race."  It would be a grave mistake to underestimate the force driving this anti-human program.  Blandshard himself didn't shrink from aping the "three generations of imbeciles are enough" O.W. Holmes of Buck v. Bell in defending it: "Fortunately, neither the people nor the courts of the United States agree that there is anything necessarily wrong in depriving an insane or feebleminded person of the capacity to reproduce by a simple and relatively painless operation which does not even deprive him of the satisfaction of sex."  Here one does well to recall that Holmes's opinion in Buck, from which the Catholic Pierce Butler alone dissented, was joined by Stone, Brandeis, Taft, Sutherland, Van Devanter, Stone, and, of course, McReynolds. 

I am of the mainstream view that Buck v. Bell was wrong, but I am also of the view that Pierce v. Society of Sisters, a so-called "substantive due process" decision from which even Holmes did not dissent, and a decision contemporary neo-conservatives have a hard time justifying in terms of their judicial philosophy of choice, was and remains right.  Be that as it may, our Supreme Court's power and authority to set aside acts of the legislature on the ground that they are substantively deficient are not going away, and for that sufficient reason it makes good sense for the Senators to inquire into the substantive views of judicial nominees.  When the Senators do make those inquiries and make them openly, We the People can assess whether their own criteria for evaluating those views are Blanshardian, as they often are and will be, and then decide for ourselves if we will keep voting Blandsharians into high office.  Blanshardians usually beget Blanshardians.      

July 4, 2018 in Brennan, Patrick | Permalink