Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, July 3, 2015

"What Every American Should Know"

Here is a thoughtful piece that explains well why, in an ever-changing America, we need both "cultural literacy" and multiculturalism: that is, an expanded and changed shared core of literacy. Just a couple of bits (read the whole thing):

The more serious challenge, for Americans new and old, is to make a common culture that’s greater than the sum of our increasingly diverse parts. It’s not enough for the United States to be a neutral zone where a million little niches of identity might flourish; in order to make our diversity a true asset, Americans need those niches to be able to share a vocabulary. Americans need to be able to have a broad base of common knowledge so that diversity can be most fully activated. . . .


As the cultural critic Albert Murray wrote in his 1970 classic The Omni-Americans, the essence of American life is that it relentlessly generates hybrids. American culture takes segments of DNA—genetic and cultural—from around the planet and re-splices them into something previously unimagined. The sum of this—the Omni—is as capacious as human life itself, yet found in America most fully. This is jazz and the blues. This is the mash-up. This is everything creole, mestizo, hapa. In its serious forms, multiculturalism never asserted that every racial group should have its own sealed and separate history or that each group’s history was equally salient to the formation of the American experience. It simply claimed that the omni-American story—of diversity and hybridity—was the legitimate American story.

July 3, 2015 in Berg, Thomas | Permalink

John Stinneford on GLOSSIP v. GROSS

MOJ friend John Stinneford, professor of law at the University of Florida, has published a discerning commentary on--and, I think, a persuasive critique of--the Supreme Court's ruling earlier this week in Glossip v. Gross, the lethal injection case in which several justices debate the question of the constitutionality of capital punishment.  Consider what John has to say, here.  For those who would like to read the case itself, here it is:  Glossip v. Gross (2015).

July 3, 2015 in Perry, Michael | Permalink

Thursday, July 2, 2015

Comments on Obergefell, the Marriage Holding, and Religious Liberty

I have comments on Obergefell up at America and the Cornerstone religious freedom blog of the Berkley Center at Georgetown. They continue in the vein I've pursued, that we should protect both same-sex-marriage rights and meaningful religious-liberty rights. The Court has, correctly in my view, protected the former; we'll now see if courts and legislatures protect the latter. In the two recent pieces, I try to argue: (1) The majority opinion's assurances about the right to "teach" religious principles should not be read to denigrate, by omission, the distinct right to "exercise" religion (i.e. to operate consistently with those principles). (2) The majority's conclusion that the state's denial of marriage rights demeans same-sex families does not say that the traditional view of marriage is per se demeaning (the Court elsewhere says the view often rests on "decent and honorable" premises). There is no conclusion in Obergefell that the traditional view is inherently demeaning such that people who exercise that view in their own religious institutions are bigoted and ineligible for accommodation.

July 2, 2015 in Berg, Thomas | Permalink

"Cheering for Thanatos"

Here is James Mumford, in The Hedgehog Review, on the yet-again-picking-up-steam movement for euthanasia in the U.S. and U.K.  The conclusion:

In a world that has seen amazing progress in so many areas of social life, euthanasia would be a huge step backwards. Why? Because in an increasingly ageist culture, many older people perceive themselves to be a burden. They might not say so. They definitely haven’t been sat down and told so. But their sense of superannuation is a societal norm that has been, in the way Michel Foucault demonstrated over and over again, thoroughly internalized. Is it not more than imaginable that this sense of being a burden will lead, in many sad and tragic cases, to euthanasia?

July 2, 2015 in Garnett, Rick | Permalink

Religious Freedom after Obergefell

At City Journal, Adam Freeman helpfully identifies a number of the issues that are, or will soon be, arising regarding religious institutions, public funds and grants, and antidiscrimination laws.

July 2, 2015 in Garnett, Rick | Permalink

". . . [C]orporations aren't always the bad guys."

So says Frank Bruni, in the NYT.  It turns out, apparently, that when we're talking about Hobby Lobby (etc.), corporations "don't have a soul," don't stand for things, don't exercise religion, don't have expressive interests, etc.  But, when it's Eli Lilly bashing Indiana for its Religious Freedom Restoration Act (on the basis of misrepresentations and misunderstandings of that Act), then . . . we see the "sunny side of greed."  


July 2, 2015 in Garnett, Rick | Permalink

Vallier on "Liberal Politics and Public Reason"

Go here for a really interesting podcast about Prof. Kevin Vallier (Philosophy, Bowling Green) and his new book, "Liberal Politics and Public Reason:  Beyond Separation."  Here's part of the promo:

In Liberal Politics and Public Faith: Beyond Separation (Routledge, 2014)Kevin Vallier develops a novel view of the role of religious conviction and reasoning in liberal democracy. On his view, religious citizens will rarely need to constrain the role that their religious convictions play in their public activities. However, Vallier also contends that public officials and institutions cannot determine public policy solely on the basis of religious reasons.


July 2, 2015 in Garnett, Rick | Permalink

A Catholic Response to Modern Day Slavery

Campus of The Catholic University of America is abuzz with the just announced details of the Papal visit. While the focus of his trip is the World Meeting of Families in Philadelphia, Pope Francis will be involved in some very important matters here. To follow the details of his trip, click here.

While it is wonderful to host the Holy Father, it is even more important to heed his calls to work for justice. One way this is happening next week on campus is an important multi-disciplinary conference on Human Trafficking, aptly titled, Answering Pope Francis's Call: An American Catholic Response to Modern Day Slavery. Hosted by University's National Catholic School of Social Service, the USCCB, Catholic Charities of the Archdiocese of Washington, and Catholic Charities, USA, this critical conference seeks to educate dioceses throughout the nation on identifying and responding to modern day slavery in their communities. As I have blogged about previously, many components of the Church, particularly women religious, have been working on this issue for decades. But many other diocese are unaware of the problem within their midst. This conference will bring together national leaders on the topic, both within and outside the Church, to help the Church continue its important work in this area. Tune in next week for blogging from the conference.

July 2, 2015 | Permalink

Wednesday, July 1, 2015

Federal court dismisses ACLU's "theological malpractice" lawsuit

A federal district court in Michigan yesterday dismissed the ACLU's "theological malpractice" lawsuit against the United States Conference of Catholic Bishops and current and former chairs of a Catholic hospital network. For background on the case of Means v. United States Conference of Catholic Bishops, see my earlier Mirror of Justice post (with links to other coverage).

The filing of this case made a big media splash; its dismissal, not so much. Compelling factual allegations are more interesting than careful dissection of a novel legal theory, I suppose. 

The court concluded that it lacked personal jurisdiction over the USCCB and that plaintiff failed to state a claim upon which relief can be granted against the other defendants. There is some discussion of what the court describes as ecclesiastical abstention, which the court found would have applied to the elements of breach and proximate cause. But the plaintiff would have failed to state a claim upon which relief can be granted even in the absence of that doctrine. The court held that plaintiff failed to identify a legal duty owed plaintiff by the individual defendants. In the court's words, "Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network." 

I am already seeing expressions of dismay and outrage in various quarters one would expect to see them. But the court's application of plain-vanilla legal principles seems unobjectionable. People who want to express their opinion should probably read the court's opinion first.

July 1, 2015 in Walsh, Kevin | Permalink

When bad things happen to good law -- some law and principles for a rough guide

I wrote yesterday that the Supreme Court's Arizona redistricting-by-commission decision made good law bad. A court majority did this by redefining the word "Legislature" in the Constitution's "Elections Clause" to include a legislative process designed to bypass the legislature. This new and expanded understanding of "Legislature" may be better policy, considered purely as policy. But as law, the "Elections Clause" is worse than it was before, for it has lost some of the determinacy it previously had, which is one of the reasons it was included as written law to begin with.

Decisions like the Supreme Court's "Legislature"-redefinition decision raise the question of how to respond when bad things happen to good law.

One appropriate response is condemnation. Done persuasively, condemnation of bad decisions may decrease the likelihood of similarly bad decisions. And conscientious government officials should be open to fair legal criticism. Indeed, it is their duty to heed such criticism.

What about accepting the erroneous interpretation as law? Should we? 

This raises a number of difficult questions for political prudence. The answers to some of those questions can be informed by correct legal analysis, although that will only take us so far. But here's a start.

The Supreme Court cannot change the Constitution. Like all other government officials, the Justices of the Supreme Court are under the law; they are its servants. The Constitution is their master; they are not our masters. 

The Supreme Court can nevertheless change the law that judges of inferior courts are obligated to apply. The holdings of an opinion for the Court bind inferior judicial officials as a matter of vertical stare decisis. Even erroneous decisions create "new law" of a peculiar sort. This "case law" is not equivalent to the Constitution itself, even for judges of inferior courts. But it is law of a certain sort.

Like other courts, the Supreme Court can also render judgments and make legally binding orders. These judgments and orders also make law of a certain sort, in accordance with the law of judgments and the law of remedies. Included in the law of judgments, for example, are various rules of preclusion that prevent (or "preclude") the relitigation of finally decided matters. 

All of this "new law" created by an erroneous Supreme Court decision is final in some respects, but not final in others. Precedents can be distinguished, narrowed, and even overturned; judgments can be re-opened; orders can be amended. There's law about how all that happens as well (though some of that law, such as that guiding judicial practice regarding precedents, is rather fuzzy).  

Knowing the ways in which an erroneous Supreme Court decision is and is not law in various ways can help inform whether and how one accepts that decision as law.

Suppose you really like redistricting by commission but you think the Supreme Court's interpretation of "Legislature" to authorize it was legally wrong. Should you vote for an initiative that takes advantage of that erroneous interpretation to authorize redistricting by commission? That depends on much more than just the legal analysis provided thus far. You will be undermining constitutional self-government at least to some degree, but perhaps not much. And the resulting process will be good law of a certain sort. There is a lot of room for political judgment and discretion here.

What if you have taken an oath to uphold the Constitution (as I did, for example, when I was sworn into the bar)? Would voting for that initiative violate your oath? If so, then you shouldn't do it. But voting for an initiative that helps to solidify in practice an erroneous constitutional interpretation does not necessarily violate a voter's oath to the Constitution. We do not think that lawyers violate their oath to the Constitution when they help clients order their affairs in the wake an erroneous judgment in a constitutional case. After all, the judgment is law of a certain sort for that client. Why think differently about voters? 

To say that it is permissible in certain circumstances to act on erroneous judicial interpretations of the Constitution is not to say that it is obligatory. Far from it. Some government officials have an obligation to treat these erroneous interpretations as law of a certain sort, as we have seen. But they also have an obligation to the Constitution itself.  And they should not make that good law worse just because the Supreme Court has. Judges on inferior courts can distinguish and criticize; other officials (and voters) can adopt an opposite interpretation as a political rule. And in some circumstances--maybe even most--they and we should.

The law shapes and guides here, but does not fully determine what one ought to do when bad things happen to good law. 

July 1, 2015 in Walsh, Kevin | Permalink

Tuesday, June 30, 2015

Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment

In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?

This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.

June 30, 2015 in Perry, Michael | Permalink

Some thoughts on the method-of-execution case

I posted, in America, some thoughts about the Supreme Court's Glossip decision on lethal-injection drugs.  A taste:

This case and, more dramatically, this exchange highlight—as did Friday’s decision constitutionalizing same-sex marriage—one of the most important questions in constitutional law: Which divisive and difficult questions of morality and policy does the Constitution leave to the democratic process and which ones has it removed from politics? For about a century, this question has sharply divided citizens and justices alike. When the Court strikes down as unconstitutional a policy that we think is justified, or at least debatable, we are likely to cry “activism!” or “overreach!” When the Court lets stand a policy that we embrace, or at least think is reasonable, we tend to praise it for its “humility” and “restraint.” When it comes to the role of judges and the power of “judicial review,” few of us achieve perfect and principled consistency.

It is possible to think that, for example, abortion should be generally legal while at the same time believe that the Court got it very wrong, in Roe v. Wade, when it declared that the Constitution—rather than elections, legislation and compromise—answers all questions about abortion’s legality and regulation. The same can be said—indeed, Chief Justice Roberts underscored this point in his dissent in Friday’s ruling—about same-sex marriage. And, similarly, one can firmly oppose capital punishment as a failed and unjust policy while believing that, in our system, its abolition depends on persuading our fellow citizens and not five justices of the Supreme Court.

June 30, 2015 in Garnett, Rick | Permalink

The Arizona redistricting decision shows how to make good law bad

I had not been following the Arizona redistricting-by-commission case very closely, but I've been reading the Supreme Court's opinions from beginning to end the past couple of weeks (the joy!), and yesterday brought the Court's decision in that case. It is a very bad decision. I don't mean bad as a matter of policy; I don't know enough to have an informed opinion on that. But bad, very bad, as a matter of law. 

The bad law exemplified by the case is what one might call adverb law--law about how to do law lawfully. The Justices in the majority adopted an approach to the text of the Constitution that defeats a central purpose for having a written Constitution--to determine and to fix the rules so that people can hold the government (and themselves) to those rules later. 

The legal text at issue was the "Elections Clause" of the U.S. Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." (emphasis added)

Arizona voters, acting via initiative, found a way to bypass redistricting by the Arizona legislature; they vested redistricting authority in an independent commission instead.

The Arizona legislature lodged the obvious legal objection: The Elections Clause says that redistricting is to be done "in each State by the legislature thereof," but the Arizona initiative places redistricting authority outside the state legislature.

The legislature lost. The same five-Justice majority that redefined civil marriage last Friday redefined "Legislature" yesterday. In an opinion for the Court by Justice Ginsburg, the Supreme Court held that redistricting by an independent commission counts as redistricting "by the Legislature" under the Elections Clause. Chief Justice Roberts wrote the main dissent, which interprets as well all the majority interprets as poorly. 

While the willingness of one Justice to write and four others to sign on to loose legal analysis like the majority's is disheartening, a comparison of Justice Ginsburg's opinion for the Court with Chief Justice Roberts's dissent illustrates another virtue of a written Constitution: We can more easily identify when the Justices approve unlawful law by twisting our written Constitution than by operating outside the constitutional text entirely.

This is cold comfort, I know. But at least it provides the basis for warm condemnation.

So go, read the Chief's dissent. Don't be a chump.

June 30, 2015 in Walsh, Kevin | Permalink

In Conversation with Erika about the “sliver of silver lining”


Yesterday, I was in contact with Erika about her posting on the Obergefell decision and what seemed to be Justice Kennedy’s decision not to cite the “mystery of life” passage from Planned Parenthood v. Casey. During Sunday’s chemo session, I had the time and a little energy to read carefully the majority opinion in Obergefell—after all, as the old Soloflex advertisement used to say, “No pain; no gain!” Only Justice Thomas in his dissent cites Casey, but he does not address the “mystery of life” language.

Upon returning home, I studied the citations to Lawrence that appear in Obergefell and discovered something that robs Erika, me, and others of the hope that liberty is no longer defined by the “mystery of life” passage of Casey.

In the Court’s opinion of Obergefell, Justice Kennedy refers a fair number of times to Lawrence v. Texas. No surprise there. In two of his Lawrence citations on page 12 of the Obergefell slip opinion, he refers to 539 U.S. at 574. That is where he, Justice Kennedy, discussed the liberty passage of Casey in Lawrence. I hasten to add that on page 12 of Obergefell, Justice Kennedy is discussing the underlying substantive principle of liberty. So, indirectly he does rely on the problematic language of Casey without having to mention the specific language in Casey that formulates the definition of liberty discussed by Erika. Whether this was Justice Kennedy’s intention or not, I cannot say. But some readers of Obergefell may wish to take the time to examine all the citations to Kennedy’s previous decisions cited in Obergefell and discover that the Casey formulation is indirectly discussed by the two citations to “at 574.” Hence, the flawed definition of liberty discussed by Erika has been given an extension on its life. The sliver of the silver lining is a phantasm. While Casey is not specifically mentioned in Obergefell, Justice Kennedy introduces its liberty formulation in stealthy fashion by citing Lawrence’s discussion of it.


RJA sj

June 30, 2015 in Araujo, Robert | Permalink

Monday, June 29, 2015

A sliver of silver lining

It's difficult to find a silver lining in the case decided last Friday, but I'm going to try to offer just one:  in Kennedy's discussion of substantive due process, he dropped neither Roe nor Casey in his citations.  Casey's "sweet mystery of life" passage would have seemed particularly apt, given that Obergefell's definition of liberty builds upon that phrase's postmodern quest for identity-creation more than anything we've seen since. "At the heart of liberty is the right to define one's concept of existence, of the universe, and of the mystery of human life"...and, according to Obergefell, to "define and express [one's] identity." Kennedy cited Griswold (6 times) and Eisenstadt too, but neither Roe nor Casey.  Yes, both cited cases concern privacy within the marital state, but Obergefell wasn't at all about privacy within the marital state.  

From the Opinion of the Court: 

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972)

Gives one a bit of hope that Kennedy's "better informed understanding" of liberty no longer includes the right for a mother to end the life of her unborn child...

June 29, 2015 | Permalink

Sunday, June 28, 2015

Our way cool Constitution

I mean, is this cool or what?  Our Constitution is a living, breathing document!  It evolves to stay in sync with Anthony Kennedy's moral and political beliefs. It's like magic!

June 28, 2015 | Permalink

June 26 and the Future

This portrayal of Thomas More's trial for high treason is something upon which Catholic legal theorists may wish to reflect in light of Friday's marriage decision:


Some organizations which received the decision they sought in the litigation have suggested they will now disband. I am skeptical of their claim. As was the case with Henry VIII and his Parliament, will those having rational arguments to present that conflict with the majority decision find themselves in the difficult position of Thomas More? Time will tell.


RJA sj

June 28, 2015 in Araujo, Robert | Permalink

Saturday, June 27, 2015

Three recommendations for religious reaction to the Supreme Court's legal redefinition of civil marriage

In thinking about the general topic of religious reactions to the Supreme Court's redefinition of marriage, I continue to find that the strongest religious reactions are among those evangelizing the five-Justice majority's decision as if it should be revelation for the rest of us. Consider, for example, this CNN report of a speech by Hillary Clinton in northern Virginia last night:

Clinton read the last paragraph of Justice Anthony Kennedy's opinion from the stage on Friday, ending with, "And to that I say, amen, thank you."

"This morning, love triumphed in the highest court in our land," Clinton said. "Equality triumphed, America triumphed."

There's more where this came from, of course, from the relighting of the White House to the rainbow-ization of corporate logos and profile pictures on social media. (And let's not forget the Supreme Court demonstrator proclaiming "Anthony Kennedy is My Spirit Animal." Or the reaction to the decision: "Cries of joy rang out when the decision was announced. A gay men's chorus began to sing.") Everyone wants to "spread the good news," it seems.

But that's not true. Not everyone thinks what the Supreme Court has done is legally permitted, much less legally compelled. So what about the rest of us, who take what comfort we can from the symbolism and the substance of the Chief Justice of the United States dissenting from the bench? 

A few suggestions, in increasing specificity:

1. Pray. We all need grace to be prudent, temperate, just, and courageous, as well as faithful, hopeful, and charitable. 

2. Insist that all in government act lawfully. People of faith must insist that our legislators and judges be people of the law rather than prophets of a false faith--whether in "progress" or in "history" or in a new understanding of "the central meaning of the fundamental right to marry."

3. Engage in concrete acts of self-government. Congress should pass legislation using its authority under Section 5 of the Fourteenth Amendment to ensure that marriage remains a two-person enterprise. 

June 27, 2015 in Walsh, Kevin | Permalink

A few quick thoughts about Obergefell (and Glucksberg)

Here is a short reaction-piece I did for America, and here is one I did for National Review Online.  Here's a bit from the America piece, which touches on an issue that I don't think most commentators have been talking about:

Today’s ruling raises many questions, and not only about the “next steps” with respect to marriage-related rules and nondiscrimination laws. For example, the reasoning in Justice Kennedy’s opinion is in significant tension with the opinion—which Justice Kennedy joined—in the Court’s 1997 decision that upheld the right of governments to outlaw physician-assisted suicide. In that case, Washington v. Glucksberg, Chief Justice Rehnquist had insisted that a “liberty interest” had to be deeply rooted in our country’s history and traditions before it could be treated as the kind of “fundamental right” that is protected against state regulation. The asserted right to doctor-assisted suicide did not, the Court concluded, have that kind of pedigree. In Obergefell, however, Justice Kennedy did not follow Rehnquist’s example in allowing history and tradition to constrain judicial power. And, as the pressure in some states to embrace physician-assisted suicide increases—in the name of “dignity” and “compassion”—it is not clear that the Court’s wise refusal in Glucksberg to constitutionalize a right to that practice will stand.

Here, just as a reminder, is how the late Chief Justice Rehnquist ended his opinion for the Court in Glucksberg:

Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.


June 27, 2015 in Garnett, Rick | Permalink

Friday, June 26, 2015

Justice Kennedy's opinion as a religious reaction to same-sex marriage, and President Obama on "justice that arrives like a thunderbolt"

A few weeks back, I agreed to participate in an AALS panel next January on "Religious Reactions to Same-Sex Marriage." So I've been thinking about and observing and reflecting on the phenomenon, and will continue to do so.

Reading Justice Kennedy's opinion in Obergefell v. Hodges, it seems to me that the opinion itself can be understood as a religious reaction to same-sex marriage. Among other things, it purports to remedy an injury of being rendered "strangers even in death."  

The religious reactions I've seen so far have been from the opinion's enthusiastic adherents. President Obama, for example, has described this 5-4 ruling as bringing "justice that arrives like a thunderbolt." 

June 26, 2015 in Walsh, Kevin | Permalink

"Serious Questions About Religious Liberty"

From Justice Roberts' dissenting opinion in today's marriage ruling:

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for 28 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

June 26, 2015 in Stabile, Susan | Permalink

June 26, judicial impartiality, and Justice Kennedy -- cause for concern?

At Above the Law, David Lat wrote yesterday "Why the Same-Sex Marriage Decision Will Likely Come Out Tomorrow." That's today, June 26.

Lat and others find in this speculation reason for excited anticipation. They should not, for the timing would further sharpen the perception that Justice Kennedy's amour-propre has played an outsized role in the Supreme Court's evaluation of same-sex marriage under federal law. 

The speculation about June 26 as a day for "Big Gay Cases" (to use Lat's phrase) is based on the belief that Justice Kennedy has written an opinion for the Court requiring states to license and recognize same-sex marriages. Lat writes:

A June 26 hand-down of Obergefell would make that the day of decision for three of Justice Kennedy’s four Big Gay Cases — Lawrence, Windsor, and Obergefell (with Romer v. Evans, decided on May 20, 1996, as the only case not falling on June 26). And authorship of Obergefell would arguably make Justice Kennedy the single individual who has done more to advance gay rights in the United States than, well, anyone in history.

An astute observer of the Court corresponding with Lat points out that it appears unusual based on experience in recent years for the Court to schedule an opinion announcement for the Friday before the end of the Term. "There is no reason to break with character and issue a Friday decision," Craig Konnoth writes, "except to celebrate an anniversary." In an update, Lat notes that Justice Kennedy has "a sense of history and also a sense of drama, so if any justice would be attentive to anniversaries, it would be AMK."

All of this is highly speculative, as all involved acknowledge. And the final update on Lat's post quotes Eric Citron (a former Supreme Court clerk, current SCOTUSBlog commentator, and Supreme Court practitioner) with a strong formulation of the conventional wisdom about the timing of hand-downs. "The main determinant of when a case comes out is when it is ready; the Court barely considers other factors at all. And these matters are largely under the control of the Chief’s office, and I think it would be genuinely surprising, given all the things the Court is working on right now, if this kind of coincidence was in mind." I tend to agree with Citron. But Lat further comments "even if the decision on timing is ultimately up to Chief Justice Roberts, perhaps with input from the Reporter of Decisions, I can’t help thinking that the Chief would try to accommodate Justice Kennedy if AMK expressed a strong preference for June 26." And it is hard to disagree with that.

So, why would this timing be bad if deliberate? Justice is supposed to be blind. Judges should not try to create anniversaries of decisions of theirs that they would like to be celebrated. That is not how impartial judging operates. As John Finnis has written in the related context of criticizing Dworkinian moralism, "the horizon is ordinarily not the best focus for the judicial gaze."

I don't want to overstate the principle at work here. Judges may often properly have regard to the effect of timing on particular litigants. And this may even properly push them to work overtime to issue a decision more quickly. Consider the wrongfully convicted and imprisoned man now in possession of conclusive evidence exonerating him. The judicial system should work hard to end that injustice as soon as possible.

One might analogize that situation to same-sex marriage under the Constitution. Interpreting the Fourteenth Amendment to require State licensing and recognition of same-sex marriage, on this view, would be the correction of a historic injustice that cannot come fast enough. But that is not how Justice Kennedy and his colleagues have managed the issue thus far. A more accurate perception is the careful cultivation of public opinion, and concern to be on "the right side of history." Because these are not the actions of judges under the law, I hope this speculation of Above the Law is wrong. 

June 26, 2015 in Walsh, Kevin | Permalink

Thursday, June 25, 2015

The role of the judge

OK, I think I finally get it!  The role of the judge in constitutional interpretation is to insert into the text words that aren't there but, in the judge's opinion, should be ("abortion," "marriage," etc.).  The role of the judge in statutory construction is to remove from the text words that are there but, in the opinion of the judge, should not be. Eureka! (I must have been absent the day they taught this in law school.)

June 25, 2015 | Permalink

Tuesday, June 23, 2015

Mary Ann Glendon’s 2015 Cardinal Egan Lecture: “Religious Freedom: Yesterday, Today and Tomorrow”


Many of us who contribute to or read the Mirror of Justice know and appreciate the importance of religious liberty to our American republic and beyond. As an important voice in our nation, our bishops are encouraging us to once again observe, discuss, and pray for the Fortnight for Freedom in anticipation of the Fourth of July. In this context, I note that Professor Mary Ann Glendon delivered the 2015 Cardinal Egan Lecture at the NYU Catholic Center last month. Courtesy of the Magnificat Foundation, her lecture is HERE. It is entitled “Religious Freedom: Yesterday, Today and Tomorrow.” It should be no surprise that her thoughts are prescient. In relying on the work of the late Jean Elstain, she poses the question about the kinds of distractions used today to divorce authentic liberty—especially religious liberty—from the citizenry. It seems that bread and circuses can last only so long.

As I had several rough days in chemotherapy on Friday, Sunday, and today, I shall conclude here and let contributors and readers savor Professor Glendon’s insights. In saying this I hasten to add my strong recommendation to read carefully what she has to say.


RJA sj

June 23, 2015 in Araujo, Robert | Permalink

Greenhouse & Siegel's abortion-enabling "Casey originalism"

Linda Greenhouse and Reva Siegel have a post at Balkinization that calls upon the Supreme Court to stay a Fifth Circuit decision refusing to enjoin various provisions of a Texas law regulating abortion clinics. "Casey and the Clinic Closings"  concludes with this:

Casey has now been the law of the land longer than Roe itself. The moment has arrived for the Supreme Court to demonstrate its fidelity to the compromise it struck nearly a quarter-century ago. Women have actual, not politically manufactured, health concerns at stake. And dignity, too, is at stake: women's, the Supreme Court's, and the dignity of law itself.

A few points: 

Casey was a compromise, to be sure. But it's hard to imagine anything less un-law-of-the-land-like than that decision. The Constitution is the actual "law of the land"; "compromise" Supreme Court decisions are not. The reasoning of Supreme Court opinions provides a particular kind of law that inferior courts must make use of; but for the rest of us, the opinions of the Supreme Court are the opinions of the Supreme Court, and not "the law of the land."

- The Supreme Court owes fidelity to the Fourteenth Amendment ratified in 1868, not to a compromise that three of its nine Justices struck among themselves in 1992. 

- There is nothing dignified about groveling to Justice Kennedy, however effective this may be now and then, and however necessary this may be for anyone who wants his vote. But that is, of course, exactly what Greenhouse and Siegel find themselves doing in "Casey and the Clinic Closings." When we do this (and I do mean "we," for I cannot exclude myself from the sometimes-groveling-to-Kennedy lawyer crowd), we undermine our own dignity.

Unlike the originator of Balkinization, neither Greenhouse nor Siegel professes constitutional originalism. But those who reject constitutional originalism often end up as originalists of a different sort. They simply choose a different part of our positive law to be originalist about. No questioning whether Casey was right (indeed, Greenhouse and Siegel say Casey "is not the opinion either of us would have written"), the job of the Supreme Court is to be faithful to that decision. At stake, they say, is "the dignity of law itself." 

They're wrong about that much (thank goodness). How well they know their audience of one, we shall see.

June 23, 2015 in Walsh, Kevin | Permalink