Mirror of Justice

Ferguson, Krugman, Britain & France

Here are two, possibly complementary, op-eds -- one by Niall Ferguson about the apparent decline in religion (or, religiosity) in Britain, and the other by Paul Krugman on the state of things related to work and family in France.  Ferguson writes:

Why have the British lost their historic faith? Like so many difficult questions, this seems at first sight to have an easy answer. But before you blame it on "The Sixties" - the Beatles, the Pill and the mini-skirt - remember that the United States had all these earthly delights too, without ceasing to be a Christian country. To be frank, I have no idea what the answer is. But I do know that it matters.

Chesterton feared that, if Christianity declined, "superstition" would "drown all your old rationalism and scepticism". When educated friends tell me that they have invited a shaman to investigate their new house for bad ju-ju, I see what Chesterton meant. Yet it is not the spread of such mumbo-jumbo that concerns me half so much as the moral vacuum our dechristianisation has created. I do not deny that sermons are sometimes dull and that British congregations often sing out of tune. But, if nothing else, a weekly dose of Christian doctrine will help to provide an ethical framework for your life. And I certainly do not know where else you are going to get one.

Over the past few weeks we have all read a great deal about the threat posed to our "way of life" by Muslim extremists like Muktar Said-Ibrahim. But how far has our own loss of religious faith turned this country into a soft target - not so much for the superstition Chesterton feared, but for the fanaticism of others?

Echoing an argument that some have pressed here at MOJ, Krugman writes:

The point is that to the extent that the French have less income than we do, it's mainly a matter of choice. And to see the consequences of that choice, let's ask how the situation of a typical middle-class family in France compares with that of its American counterpart.

The French family, without question, has lower disposable income. This translates into lower personal consumption: a smaller car, a smaller house, less eating out.

But there are compensations for this lower level of consumption. Because French schools are good across the country, the French family doesn't have to worry as much about getting its children into a good school district. Nor does the French family, with guaranteed access to excellent health care, have to worry about losing health insurance or being driven into bankruptcy by medical bills.

Perhaps even more important, however, the members of that French family are compensated for their lower income with much more time together. Fully employed French workers average about seven weeks of paid vacation a year. In America, that figure is less than four.

So which society has made the better choice?

There are some disputable factual premises doing a fair bit of work in Krugman's piece, but -- putting those aside -- the point is a provocative one.

Rick

Kmiec on Catholic Judges

Here is Pepperdine law prof (and former Notre Dame law prof!) Doug Kmiec, in the Wall Street Journal, writing (I think) sensibly about Catholic judges, recusal, Roberts, etc.:

Yes, the late Pope John Paul II admonished Catholic public officials to work legislatively to limit abortion--something that even most Democrats proclaim to be doing at least during general elections. But there is not one iota of church teaching demanding that a judge or justice exceed the scope of his office to undo, on solely religious grounds, the public law of abortion or any other matter.

In this supposed controversy it is fitting to recall St. Thomas More, known to history for resigning the chancellorship of England when he failed to persuade Henry VIII not to declare himself head of the church. More is revered as a martyr for dying "the King's good servant, but God's first." But as the patron saint of lawyers and statesmen, More is far better remembered for his earnest efforts, at every turn, to avoid inescapable conflict among law, faith and public duty.

Judge Roberts listens carefully to the questions he is asked, and the extreme premise of Sen. Durbin's question--as reported--was a judicial action requiring an immoral act. One would hope that all Americans, Catholic or otherwise, would recuse themselves from that.

Rick

Liberal governments and support of religion

A few days ago, in a post called "the Government's view of the content of religion," I asked (among other things), "[w]ould it be wise or wrong [or unconstitutional?] for a government to undertake, as a matter of policy, to push the doctrines of a particular religion in a government-approved direction, or to support a particular government-approved faction within a religious tradition, in order to serve what the government regards as the common good?"

Check out this very detailed and thoughtful post, at the Positive Liberty blog, by Jonathan Rowe, responding to my thoughts.  I don't necessarily with (what appear to be) Rowe's assumptions about the views and wants of "religious conservatives", but he really gets to some very important and interesting questions.

Rick

What can a judge do?

Thanks to those who have been adding their insights to the questions about judges, especially Catholic ones, and their judicial responsibilities to uphold the rule of law in the exercise of their duties. I am not suggesting that Judge Gee of the old Fifth Circuit provides answers to this problem, but he does offer some words worth taking into consideration. As a member of the Fifth Circuit, he upheld a District Court Decision critiquing an affirmative program that worked its way to the Supreme Court under Title VII of the Civil Rights Act. When the Supreme Court reversed the District and Circuit Courts and remanded the case back to the Fifth Circuit, the latter court issued its decision Download judge_gee_weber.doc . Judge Gee had these words to offer regarding what could be done with a decision that he found “profoundly wrong”:

Obedient to the mandate of the Supreme Court, we vacate the trial court’s judgment, as well as ours affirming it, and remand the cause to that court for further proceedings in conformity with the opinion above.

Then, speaking for himself, he offered these thoughts:

For myself only, and with all respect and deference, I here note my personal conviction that the decision of the Supreme Court in this case is profoundly wrong.

That it is wrong as a matter of statutory construction seems to me sufficiently demonstrated by the dissenting opinions of the Chief Justice and of Mr. Justice Rehnquist.  To these I can add nothing.  They make plain beyond peradventure that the Civil Rights Act of 1964 passed the Congress on the express representation of its sponsors that it would not and could not be construed as the Court has now construed it.  What could be plainer than the words of the late Senator Humphrey defending the bill against the charge that it adumbrated quotas and preferential treatment that “the title would Prohibit preferential treatment for any particular group . . . .”? The Court now tells us that this is not so.  That it feels it may properly do so seems to me a grievous thing.

But sadder still tragic, in my own view is the Court’s departure from the long road that we have travelled from Plessy v. Ferguson, toward making good Mr. Justice Harlan’s anguished cry in dissent that “(o)ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.”  I voice my profound belief that this present action, like Plessy, is a wrong and dangerous turning, and my confident hope that we will soon return to the high, bright road on which we disdain to classify a citizen, Any citizen, to any degree or for any purpose by the color of his skin.

Though for the above reasons I think it gravely mistaken, I do not say that the Court’s decision is immoral or unjust indeed, in some basic sense it may well represent true justice.  But there are many actions roughly just that our laws do not authorize and our Constitution forbids, actions such as preventing a Nazi Party march through a town where reside former inmates of concentration camps or inflicting summary punishment on one caught redhanded in a crime.

Subordinate magistrates such as I must either obey the orders of higher authority or yield up their posts to those who will.  I obey, since in my view the action required of me by the Court’s mandate is only to follow a mistaken course and not an evil one.

One of the difficulties judges and the rest of us face is how to make the distinction between the “mistaken course” and an “evil one.” This brings up the point about material and formal cooperation on which Ed Hartnett is working. Judge Gee does not mention recusal as an option, but he does mention resignation. That is an extreme measure that may lead to a good and virtuous person leaving an office in which he or she should remain. But, I think what Judge Gee did by putting into the public record his concerns and his justifications for them reveals that there are alternatives, besides recusal and resignation, to what a judge can do in a case where he or she concludes that some higher human authority, be it a legislature or another judge, is “profoundly wrong.” RJA sj

Civil Disobedience and Judicial Power

Immigration lawyer Chuck Roth offers the following reflections on my earlier query regarding civil disobedience and the Catholic judge:

In our legal system, it is the role of judges to say "what the law is." In our judicial system, to rule that the law says X when in fact you know that it says Y is, in effect, a lie.  One cannot do evil that good should come of it.  Lies are immoral.  So at the level of legal analysis, you cannot willfully misstate the law, even to achieve a good end like saving a life.

I think the Judge Sprizzo example is inapposite.  Juries find not only facts, but (implicitly) decide that their sense of justice does not preclude conviction.  I see jury nullification as a crucial part of the jury's raison d'etre, as a democratic check on the political branches.  Thus, I don't view jury nullification as a lie.  Because Judge Sprizzo was acting as judge and jury, he assumed the powers of jury nullification as well.  As such, it was no lie for him to decline to convict, precisely because he was acting as jury, not judge.  So I support what he did; but that tells us about the role of a jury, not the role of a judge.

Here is an example of civil disobedience for a Judge.  A Court of Appeals judge is on a three-judge panel, and dissents, admitting that settled law calls for the conclusion reached by the majority, but refusing to consent to it.  This would not be a lie, because it acknowledges the reigning law.  But it would be a conscientious refusal to conform to that law. 

But what if two judges on the panel felt morally obligated to dissent?  This is the same circumstance as a District Court judge, on remand from the Court of Appeals, required by law to order, e.g., the destruction of fertilized eggs.  It seems to me that power changes the equation.  It is part of the nature of civil disobedience that one must be in a position of submitting to power, not wielding it.  In being civilly disobedient, one respects the law, recognizes its authority, and submits to punishment.  But where disobedience becomes so powerful as to overmaster the law, it is not susceptible to punishment, and thus cannot recognize the law's authority by submitting to legal penalties.

If it is correct to conclude that civil disobedience requires a situation of relative powerlessness, it follows that Judges can only be civilly disobedient when in the dissent.
 
All that being said, civil disobedience is not the only option in the face of injustice endorsed by authority.  As your citation of Garrison suggests, revolution is another alternative.  And I would see the act of a judge wielding power in disobedience to higher appellate authority (either as a Dist Ct judge, or in a majority) as revolution.  There may be circumstances - e.g., Bonhoeffer and Hitler - where one is morally permitted, perhaps even obligated, to rebel.  But in starting a revolution, as with any just war, one would have to carefully and prudently consider the likely effects as well as the causus belli.  So the question becomes: is the legal system so far gone as to require revolution?  Fr. Neuhaus seems (seemed?) to think so.  I am dubious, as, it sounds, are you.

David Hart on the "Anti-Theology of the Body"

Check out this essay, "The Anti-Theology of the Body," by David Hart, in the latest issue of The New Atlantis.  Here is a tantalizing bit:

The difference between John Paul’s theological anthropology and the pitilessly consistent materialism of the transhumanists and their kith—and this is extremely important to grasp—is a difference not simply between two radically antagonistic visions of what it is to be a human being, but between two radically antagonistic visions of what it is to be a god.

Here is the conclusion:

It may well be that the human is an epoch, in some sense. The idea of the infinite value of every particular life does not accord with instinct, as far as one can tell, but rather has a history. The ancient triumph of the religion of divine incarnation inaugurated a new vision of man, however fitfully and failingly that vision was obeyed in subsequent centuries. Perhaps this notion of an absolute dignity indwelling every person—this Christian invention or discovery or convention—is now slowly fading from our consciences and will finally be replaced by something more “realistic” (which is to say, something more nihilistic). Whatever the case, John Paul’s theology of the body will never, as I have said, be “relevant” to the understanding of the human that lies “beyond” Christian faith. Between these two orders of vision there can be no fruitful commerce, no modification of perspectives, no debate, indeed no “conversation.” All that can ever span the divide between them is the occasional miraculous movement of conversion or the occasional tragic movement of apostasy. Thus the legacy of that theology will be to remain, for Christians, a monument to the grandeur and fullness of their faith’s “total humanism,” so to speak, to remind them how vast the Christian understanding of humanity’s nature and destiny is, and to inspire them—whenever they are confronted by any philosophy, ethics, or science that would reduce any human life to an instrumental moment within some larger design—to a perfect and unremitting enmity.

Rick

Interesting Conference at Notre Dame

Here's the announcement for this Fall's conference sponsored by the Notre Dame Center on Ethics and Culture:

NOTRE DAME CENTER FOR ETHICS AND CULTURE
2005 ANNUAL FALL CONFERENCE
“JOY IN THE TRUTH: THE CATHOLIC UNIVERSITY IN THE NEW MILLENNIUM”

SEPTEMBER 29-OCTOBER 1, 2005
UNIVERSITY OF NOTRE DAME

Joy in the Truth: The Catholic University in the New Millennium is a conference whose mission is shaped by Pope John Paul II’s words from the opening of his 1990 apostolic constitution on Catholic universities, Ex Corde Ecclesiae:  "Without in any way neglecting the acquisition of useful knowledge, a Catholic University is distinguished by its free search for the whole truth about nature, man, and God. The present age is in urgent need of this kind of disinterested service, namely of proclaiming the meaning of truth, that fundamental value without which freedom, justice and human dignity are extinguished (no. 4).

Philip Gleason, Professor Emeritus of History at the University of Notre Dame and author of the seminal Contending with Modernity: Catholic Higher Education in the Twentieth Century, will inaugurate the conference with a keynote address on Thursday evening, September 29 at 7:30 p.m.  The conference will conclude with a festive banquet on Saturday evening, October 1, featuring remarks by the recently inaugurated President of the University of Notre Dame, Rev. John Jenkins, C.S.C.  The conference, running from September 29 ­ October 1, will bring together scholars representing all the main academic fields to discuss a broad range of issues relating to the way in which the Catholic University can best respond to the Church's call for a renewal of Catholic institutions of higher learning. The conference will also be enriched by the experience and wisdom of participants from other kinds of Christian institutions, and from secular institutions as well.

Our invited speakers are—

Bishop John D’Arcy (Diocese of Fort Wayne-South Bend)
Rev. Matthew Lamb (Ave Maria College)
Robert Sloan (President Emeritus, Baylor University)
John Finnis (Notre Dame/Oxford)
John Cavadini (Notre Dame)
Ralph McInerny (Notre Dame)
Helen Alvaré (The Catholic University of America)
David Lyle Jeffrey (Baylor University)
Rev. Kevin Wildes, S.J. (President, Loyola University, New Orleans)
Don Briel (University of St. Thomas, St. Paul, Minnesota)
Rev. Wilson Miscamble, C.S.C. (Notre Dame)
Don Schmeltekopf (Baylor University)
H. Tristram Engelhardt, Jr. (Rice University)
Michael Beaty (Baylor University)

Among the themes to be discussed by both the invited speakers and by those who submitted proposals are —

-       Academic freedom
-       The Catholic University and ecclesiastical governance
-       The distinct approaches to higher education found within various Catholic intellectual traditions
-       The distinction between Protestant and Catholic approaches to higher education
-       The enduring influence of seminal figures such as Augustine,
Aquinas, Francis of Assisi, Bonaventure, Ignatius Loyola, John Paul II, Newman, Maritain, and Edith Stein
-       The Catholic character of particular disciplines such as law, philosophy,
theology, and the arts
-       The connection between Catholic social teaching and Catholic higher education
-       New curricular initiatives
-       The “shadow curriculum” that haunts Catholic universities
-       The value of Great Books programs to Catholic higher education
-       What Christian universities can learn from Nietzsche

There will also be panels devoted to—
-       What Catholic universities can learn from non-Catholic ones
-       Transforming university administration into ministry
-       Duquesne’s doctoral program in Rhetoric as a model for Catholic
education for service
-       St. Louis University’s Micah House as a model for integrating faith, curriculum and social justice
-       Luigi Giussani and the risk of education
-       Love of knowledge as an intellectual virtue

We expect several hundred people to come to Notre Dame this fall to attend Joy in the Truth.  The total number of presentations will once again top the 100 mark.

History

Inspired by Pope John Paul II’s insistent call to activate a great campaign in
support of a new Culture of Life, the Notre Dame Center for Ethics and Culture launched in the Jubilee Year of 2000 what would turn out to be our annual fall conference and the flagship of our conference program. By promoting a “Culture of Life,” the Center takes as its mission the practical embodiment of the ethical and cultural vision expressed in Pope John Paul II’s Encyclical Letters, Veritatis Splendor, Centesimus Annus, Evangelium Vitae, and Fides et Ratio. At the core of this moral vision is a passionate commitment to the inherent worth of every human life from conception to natural death, the compatibility of faith and reason, and the connection between truth and genuine human freedom.

Sponsored by a generous grant from the Maas Family Excellence Fund, the
Center’s fall conference began as a triennial conference series dedicated to the proposition that the ideals expressed by the Magisterium of Pope John Paul II are the best antidote to our current cultural maladies. The series started, accordingly, with a conference entitled A Culture of Death (2000), which was devoted to the diagnosis of the precise nature of our current cultural maladies. It was followed by A Culture of Life (2001), which reflected more positively on the elements of a genuine renewal of culture. In a conference entitled From Death to Life: Agendas for Reform (2002), the triennial series concluded with more intense deliberation on the practical means of building a new Culture of Life.

Due to the huge success of this triennial series, the Center committed to
making the fall conference an annual event. So, once again with the generous
sponsorship of the Maas Family Excellence Fund, the conference series continued with Formation and Renewal (2003), where attention was given to the sources of moral, intellectual and spiritual formation available to a culture marked by a loss of meaning and direction. The 2004 conference, Epiphanies of Beauty: The Arts in a Post-Christian Culture, considered the role played by the arts in helping make manifest the full truth of the human person.

Throughout these first five conferences the Center has been very proud to
sponsor major addresses by a host of prominent contemporary thinkers,
including: Francis Cardinal George, Alasdair MacIntyre, John Noonan, Sr. Helen Prejean, George Weigel, Ralph McInerny, Marvin O’Connell, Michael Baxter, Helen Alvaré, Ralph Wood, Tristram H. Engelhardt, Stanley Hauerwas, Margaret Monahan Hogan, David Lyle Jeffrey, Thomas Hibbs, Joseph Bottum, Thomas Gordon Smith, Jorge Garcia, Laura Garcia, Barbara Nicolosi, Gregory Wolfe and Gerry Bradley.

This is not even to mention the scores of scholars from across the academic
spectrum and also outside of academia who deliver contributed papers to the conference each year—a number that now regularly tops the 100 mark! In
accepting proposals the Center takes special care to include graduate and
undergraduate students, and we are especially proud that each fall one or two high school students deliver their first professional paper at the conference.

But beyond providing a venue for academic discussion of the highest
caliber, the Center’s annual fall conference has also aimed to be a place where those sharing a broadly similar outlook on ethical and cultural issues can gather in a friendly atmosphere in order to build a genuine community of scholars. Such community is fostered not only by the formal discussions, but also by the shared meals and other opportunities between sessions to form personal and professional relationships.

Additional Information

The cost of the conference includes a continental breakfast and a served lunch and dinner.  All conference sessions and meals will be held at Notre Dame’s McKenna Hall.  For more information on “Joy in the Truth: The Catholic University in the New Millennium,” please visit our web site at
>http://ethicscenter.nd.edu. 

Stephen Smith on Catholic lawyers

Our own Steve Brainbridge mentioned the article a few weeks ago (I think), but I thought I'd put in another plug for Stephen Smith's essay, "Cultural Change and Catholic Lawyers."  For all you law students out there (there are some out there, I hope!), this is must-reading.

Rick

Bradley Lewis on the Common Good

Time and again on this blog, we've returned to the notion of the Common Good, and to the importance of defining properly that notion.  (Here, for example, is an earlier post about Paolo Carozza's very helpful take on the matter).  So, I'm happy to pass on the news that Catholic U.'s philosopher Bradley Lewis -- who has been visiting this summer at Notre Dame -- has a very helpful paper, "The Common Good in Classical Political Philosophy," which is forthcoming in a symposium on "The Professions and the Common Good," to be published in Current Issues in Catholic Higher Education.  (Unfortunately, I don't have a link to the essay, but I'm sure Professor Lewis would be happy to send copies).  Like Carozza, Lewis emphasizes that "[t]he good of individual persons and other groups is in an important way constitutive of the common good."  I was also struck by the claim that "[t]he common good is served . . . by particular goods being maintained by particular persons and by the common good as a whole being a separate and distinct material concern."

Maybe Vince, who also writes on this subject, has some thoughts?

Rick

50 Years of Ralph McInerny

Here is a nice tribute to Notre Dame's legendary and beloved Thomist, teacher, and mystery novelist, Professor Ralph McInerny.

Tamanaha on Civil Disobedience by Judges

As a follow-up to my earlier post, my friend and former colleague Brian Tamanaha, one of today's leading voices on the rule of law, agrees that civil disobedience by judges is an option, but probably not the best one:

I see no conceptual reason why judges cannot commit civil disobedience. They can be conscientious objectors to the law like anyone else, though they must be prepared to be fired as a result, because they have taken an oath to abide by the law which they will have violated.

As you indicate, it perhaps makes a stronger point than the alternatives. I would only add that, with respect to integrity of conduct and belief, it seems to me that the resignation alternative has more to commend it. By resigning they do not violate their oath to law and they do not commit the moral wrong. By civil disobedience, they act consistent with the moral view but violate their oath to the law. You should remember that the party before the court has legal rights as well, which the judge will be knowingly trampling (however well meaning), and the idea that the appellate court can step in is not a complete solution, especially when time is of the essence.

Perhaps you also underestimate the signal given by resignation. Quitting one’s job is a protest to the system that exacts a high personal cost; in contrast, civil disobedience imposes the immediate cost on the party before the court, and will likely result in a sanction to the judge that is less than being out of a job. Which of these two positions raises a more dramatic protest as a matter of personal conscience?

Rob

The Government's Views on the Content of Religion

One of my favorite blogs is run by the University of Wisconsin's Prof. Ann Althouse.  A few days ago, she had a post called "When government says what the 'true religion' is," commenting on Prime Minister Tony Blair's recent statement in the wake of the 7/7 bombings that the "moderate and true voice of Islam" needs to be "mobili[z]ed."  Ann asks, "how can [Blair] say what the true interpretation of a religion is?"  Similar questions were raised, a few months ago, by Eugene Volokh, regarding a proposed sex-education curriculum in Montomery County, Maryland.   The proposed curriculum supplied "facts" -- including "facts" about religion -- designed to counter certain prevalent "myths" about homosexuality.

What should we think of Blair's comments?  On the one hand, it seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines.  (I wrote an article about this interest a few years ago).  In fact, it seems to me that liberal governments have an interest in convincing people -- whether they belong to the religion in quiestion or not -- that the religion in question really teaches in accord with liberal values.  After all, religion matters to many people, and it shapes the citizens on whose judgment democratic governments purport to rely.  It is better, then, that religions inculcate some values, commitments, and loyalties rather than others.  As I wrote in my article,"Governments like ours are not and cannot be 'neutral' with respect to religion’s claims and content.  [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching."  On the other hand, there's the longstanding maxim that governments like ours should not -- and perhaps even may not -- take "cognizance" of religion, or "entangle" themselves with religion.

What do people think?  Would it be wise or wrong [or unconstitutional?] for a government to undertake, as a matter of policy, to push the doctrines of a particular religion in a government-approved direction, or to support a particular government-approved faction within a religious tradition, in order to serve what the government regards as the common good?

Rick

Paulsen on the obligations of a pro-life judge

I think the best article I've read on this topic is a typically brilliant article by Mike Paulsen. The article is entitled "Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused" and it was published in Volume 7 (1989) of the Journal of Law and Religion at pages 33-97.  Another very good treatment of this topic is the paper by Russell Hittinger on "Thomas Aquinas on Natural Law and the Competence to Judge." This paper is included in a chapter of a book that I co-edited on "St. Thomas Aquinas and the Natural Law Tradition: Contemporary perspectives" (Catholic University of America Press 2004). A shorter version of Hittinger's paper is included as chapter 4 of his book "The First Grace" (ISI Books 2003).

Richard

Law and (Liberation) Theology

I haven't yet read this--just saw the cite and thought I'd call MOJ readers attention to it.

Liberation Theology and the Law. Articles by Rhonda V. Magee and William W. Bennett. 3 Seattle J. for Soc. Just. 587-673 (2005).

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Civil Disobedience and the Catholic Judge

There is at least one loose end that remains to be tied up from our discussion of the Catholic judge.  A few days ago I indicated that a Catholic judge called to implement an immoral law faced four options: apply the law as given, resign, recuse, or engage in civil disobedience.  One reader called the prospect of civil disobedience for a judge "absurd," and he may be right.  But I won't concede the point without a bit more exploration.

Let's suppose that a Catholic judge hears a motion from a minor seeking permission to obtain an abortion without parental consent.  The judge finds that there is not sufficient cause to grant permission, and denies the motion.  The appellate panel -- comprised of judges who consistently seek to maximize reproductive rights -- rules that the lower court abused its discretion and remands for further proceedings.  If the lower court now has no viable legal or factual basis on which to deny the motion, would Catholic legal theory deem it permissible for the judge to issue the following ruling?

Under state law as interpreted by the court of appeals in this case, this 15 year-old child is entitled to terminate the life of her unborn child without even notifying her parents, making a tragic situation even more tragic.  Such an outcome is not acceptable in a legal system that purports to value both family and life.  Here, the law acts to eviscerate both.  I cannot facilitate such an outcome.  The motion is denied.

The judge undoubtedly would be subject to sanction, and the appellate court would step in and grant the motion.  The system remains intact, but a strong message of dissent has been registered.  Recusal, by contrast, simply suggests that the judge has a personal hang-up or bias toward the case -- i.e., it's the judge's problem, not society's.  At a minimum, such an act of civil disobedience by a judge seems more consistent with the rule of law than a judge's instrumentalist manipulation of law to pursue her own moral or religious ends.  The former challenges the law overtly and can be addressed through established legal procedures, the latter subverts law covertly and corrodes the rule of law from the inside out.

I admit, scenarios justifying such acts are exceedingly rare (the Jim Crow South is another potential context), and depending on our view of Catholic legal theory, possibly non-existent.  It's fairly easy to see that deference to the rule of law is not an absolute value for Catholic legal theory in a place like Nazi Germany, where the rule had been thoroughly and irredeemably corrupted.  But in contexts where the rule of law, in broad terms, is still viable, are there any specific instances where the threat of injustice is so great that a judge would be justified in temporarily stepping out of her role as an agent of the law to become a (vocal) dissenter from the law?

Note that I'm not asking whether Catholic legal theory would ever require such a stance (I don't think it would), but whether such a stance is among the permissible options.  In other words, does Catholic legal theory's embrace of the rule of law forbid civil disobedience by a judge?

Rob

UPDATE: My friend and former colleague Michael Simons reminds me that in 1997, Judge Sprizzo (S.D.N.Y.) acquitted two abortion protestors in a self-confessed act of "judicial nullification."  Here's the story, along with Michael McConnell's perspective on the case. 

And Greg Kalscheur, S.J. recommends Robert Cover's Justice Accused: Antislavery and the Judicial Process (1975), in which Cover considers different judicial approaches to enforcing the Fugitive Slave Act.

Judge Roberts

I have been following with great interest the discussion of recusal by Catholic judges. I weighed in over at my personal blog on some of these questions. My post Stare Decisis and Roe v. Wade discusses the question of whether Justice Roberts (assuming he is confirmed) would be bound by Roe. Obviously, the answer is no, but I observe in the post that some on the left are suddenly taking the concept of stare decisis far too seriously. In my post A Religious Test?, I argue it is appropriate (but politically stupid) for Democrat senators to inquire into the role Roberts' faith might play in his judicial decision making.

Christians and the Death Penalty

First Things has made available this essay, "Christians and the Death Penalty," by Joseph Bottum (the magazine's new editor), from the latest issue.  It's powerful, and provocative, and has more in it than I can capture here.  Here is the conclusion:

To leave the argument against the death penalty in the hands of those who no longer much believe this Christian story is dangerous. The people who think there is no such thing as a blood-debt are always surprised to see crowds outside penitentiaries where executions are about to take place, chanting for the execution. But those crowds appear at executions in the United States for a reason—because blood really does cry out from the ground. “He didn’t suffer as much” as his victims, one bereaved parent objected at Michael Ross’ death. Without the Christian revelation to restrain it, the sense of a blood-debt that must be paid will only grow.

When the jury brought in a sentence of execution for the man in Texas who had dragged to death a black man tied to his truck with a chain, one spokesman for the local African-American community announced that he was normally against the death penalty, but in this case it was justified repayment in blood for two hundred years of lynching. Horrible as that crime was, this is a fright ening thing to hear. The distinction between torts and crimes, between harms done to individuals and evils done to society, is breaking down across America.

You can see it in the recent emergence of civil suits for damages from murders, and the congressional orders for changes in trial procedures to accommodate the victims’ families during the Oklahoma City bombing trials, and the provisions of every new bill for victims’ rights, and the kind of testimony increasingly allowed during sentencing hearings. You can see it, perhaps most of all, in the thought, expressed by nearly everyone at Michael Ross’ execution, that the state’s criminal-justice system was paying something back to the families of his victims. Even Michael Ross came to believe it—came, in fact, to demand it, fighting every attempt to save him—and it is a primitive and pre-Christian understanding of justice.

The divine right of kings was a short-lived political theory, swept under by rival theories in early modern times. A new understanding of the limited sovereignty of government emerged, and one of the primary causes was the gradually developing awareness that Christianity had thoroughly demythologized the state. But that is not, by itself, a stable condition. Without constant pressure from the New Testament’s revelation of Christ’s death and resurrection, the state always threatens to rise back up as an idol. And one sign of a government’s overreaching is its claim of power to balance the books of the universe—to repay blood with blood.

Rick

Romney on the Abortion Status Quo

In today's Boston Globe, Massachusetts Governor Mitt Romney explains why he vetoed a bill that would have expanded access to emergency contraception.  Essentially, he argues that the bill would have altered abortion law, which he pledged during the campaign not to change. Here is his justification for that stance:

I understand that my views on laws governing abortion set me in the minority in our Commonwealth. I am prolife. I believe that abortion is the wrong choice except in cases of incest, rape, and to save the life of the mother. I wish the people of America agreed, and that the laws of our nation could reflect that view. But while the nation remains so divided over abortion, I believe that the states, through the democratic process, should determine their own abortion laws and not have them dictated by judicial mandate.

Because Massachusetts is decidedly prochoice, I have respected the state's democratically held view. I have not attempted to impose my own views on the prochoice majority.

I appreciate this deference to democracy, but if he truly wishes that the laws could reflect his prolife views and is legitimately positioned as governor to shape those laws, can deliberate inaction be justified by surveys showing that a majority of voters support the status quo?  I suppose that without such a pledge, he would not have been elected in Massachusetts and not positioned to do whatever good he is doing.  Still, his reasoning strikes me as a bit curious.

Rob

Revisiting Stephen Carter's Religiously Devout Judge and a Reprise of the Objective Model of Judging

More than fifteen years ago, Stephen Carter anticipated many of the questions that are being raised today about the legitimacy of religoiusly-devout judges drawing upon their religiously-based visions in making judicial decisions. Although he argued that a religiously-devout judge is as entitled to draw upon his religious faith as is another judge to draw upon moral principles, he concluded by asking whether it might not be preferable to return to the aspirational ideal of objective judging so that personal views, whether religious or otherwise, would not be the basis for judicial edicts. Below I set forth some of the concluding words in Stephen Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989):

"Now, of course, we ought to be uncomfortable with the idea that the religiously devout judge will proceed at once to her religious values—but only for the same reasons that we ought to be uncomfortable with the idea that any judge will proceed at once to her own values. * * *

I expect this proposal to make liberals uncomfortable, because the liberal uneasiness with religion is not readily overcome by brief, scholarly analysis. And yet, even if I have not convinced you that the religiously devout judge ought to be free to rest her moral knowledge on her religious faith, I hope that I have at least offered a plausible case for the proposition that there is no apparent reason to treat her religious faith differently from moral faiths of other kinds. The implication of this insight for the “do-the-right-thing” type of judicial review should be plain—either all judges should be free to rely on their moral knowledge as they make decisions, or no judges should.

The ideal of the objective judge was slain by the legal realists long before the critical legal studies movement resurrected it in order to kill it again. But the ghost of the objective judge refuses to go away. I doubt that the objective judge will die quietly, as long as liberals continue to think that letting a judge rest her decisions on a moral understanding is a good idea. Because once a judge’s moral understanding is permitted to play a role, the liberal argument cannot distinguish religiously based knowledge from other moral knowledge, or at least, cannot do so without arguments that require a bit too much cognitive dissonance. The aspirational model of the objective judge might offer the only path to sanity. And if we continue to pursue distinctions as crazy as this one, a path to sanity will be a useful thing to have."

Greg Sisk

Guest-blogging at Prawfsblawg

The folks at Prawsblawg, a "group of young legal turkeys offering their thoughts on law and the things that really matter in life," have invited me to "guest blog" for a few days.  So, check out the conversation.  (For some interesting posts on Judge Roberts, religion, and recusal, go here and here and here).

Rick

Review of McGreevy's "Catholicism and American Freedom"

My review (originally published in the Michigan Law Review) of John T. McGreevy's (relatively) recent book, "Catholicism and American Freedom," is now available on SSRN.  Here's the abstract:

John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other.

McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.

Rick

Recusal Standards and the Catholic Judge

My colleague Elizabeth Brown adds some legal insight to our recusal discussion:

Robert Araujo raises the issue of what are the standards for recusal for Supreme Court Justices.  Ed Harnett has addressed this in his post, but it might be useful to provide the relevant language from 28 USC Section 455:

§  455.  Disqualification of justice, judge, or magistrate [magistrate judge]

(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

. . . .

Roberts has represented a large number of corporations while at Hogan & Hartson but he could still hear cases in which these corporations are parties unless he worked on the matters before the Supreme Court for the corporations while he was at Hogan & Hartson or another lawyer at Hogan & Hartson was working on the matters while Roberts was with the firm.  28 USC §  455 (b)(2).  Just because he was a partner at Hogan & Hartson, however, does not mean that he must recuse himself from every case involving Hogan & Hartson that may come before the Supreme Court.  So Fr. Araujo's example of Justice Ginsburg and the ACLU would be similar to this later situation, i.e., unless Justice Ginsburg had worked on the matter that the ACLU was bringing before the Supreme Court she would not have been required to recuse herself under §  455.  While paragraph (a) of §  455 and paragraph (b)(1) require a Justice recuse himself in situations where his impartiality could reasonably be questioned or where he has a personal bias, this generally has not been extended to cover situations in which former clients of the Justice when he was in practice come before the Supreme Court on matters that he did not work on for them when he was in practice.  As Ed Harnett has already noted in his posting, paragraphs (a) and (b)(1) of §  455 would be the standard that would be applied to a situation in which a Justice's religious beliefs required that he decide a case in only one way.  In this case, he would not be impartial and should recuse himself.  For Supreme Court justices, they are their own arbiters of when they need to recuse themselves.  So for example, it would solely up to Roberts to determine if the Church's teaching on abortion precluded him from deciding an abortion case on the legal merits but forced him to decide the case in only one way.  To date, none of the other Catholic justices have felt compelled to recuse themselves when hearing abortion cases.

Recusal and the Rule of Law

Once again, thanks to those participants who have contributed to the discussion about judicial recusal. I would like to respond briefly to this topic and related matters involving “personal convictions about what the law ought to be.” Let me begin with recusal. I have mentioned before that recusal is a method for insuring that a judge who has a personal stake in a case does not participate in its deliberations. I think this means that if the judge has a direct financial interest in the conclusion, is related to one of the parties, or, as a lawyer, previously directed some aspect of the case for one of the current litigants, he or she should seriously consider recusal.

But let us take another situation. What if a judge has not only been a “member” of the ACLU but was a principal for a number of years. Should this person, if appointed to the bench, recuse himself or herself if the ACLU is a party in a case before this judge? This is the situation in the Kentucky Ten Commandments case in which the ACLU (of Kentucky) was a principal. Justice Ginsburg, who had a long professional association with the ACLU, participated in the case. I do not recall if there was any substantive discussion about whether she should have recused herself, but she did not. And, I do not think that she should have recused herself on the grounds of her membership and former role in the ACLU. So, we come to Judge Roberts. Why should he recuse himself in a case that might involve an issue raising the legal status of abortion? I do not believe that the reason that his “personal convictions about what the law ought to be” is a real issue in determining the matter.

Quite frankly, how do we explain a court overruling itself otherwise? The law that was settled in Plessy was unsettled by Brown. The law that was settled in Bowers was unsettled in Lawrence. The law that was settled in National League of Cities was unsettled in Garcia. The law that was settled in Union Gas was unsettled in Seminole Tribe. Were the personal convictions about what the law ought to be involved in these cases? Perhaps another way of looking at these changes in the law might be this: did the new case provide an opportunity for enough justices to say that the Court was “wrong” in the past, and today in this new case we can rectify the “error of the past” notwithstanding the question of something being previously settled. If Plessy, Bowers, National League of Cities, and Union Gas were “wrong,” what principle in the rule of law insists that Roe was, is, and must always be right?

It may well be that in the eyes and minds of some honest intellectual debate is dismissed as “personal convictions about what the law ought to be.” But, when some reason and logic are permitted to overrule precedent but other reason and logic are viewed as “personal convictions about what the law ought to be,” we have a problem in the rule of law. I understand as well as the next person the political consequences of overruling precedent, but I hasten to add that what is it in Roe that makes this precedent and its progeny immune from the scrutiny of reason and logic, key components of the rule of law? The reason and logic that Judge Roberts may have to bring to the reexamination of any precedent, including Roe, are not grounds for his recusal if the reason and logic of the other members of the Court are not subject to the same examination. If Judge Roberts is a virtuous man, and I think he is, what counts is the quality of his reason and his logic. The related pastoral issues which may sooner or later be involved are for Judge Roberts, his priest, and his bishop to address.  RJA sj

The politics of parish closings

According to this article in the Boston Herald, "[c]ity councilors Jerry P. McDermott, James M. Kelly and Paul Scapicchio want the Nov. 8 ballot to include a nonbinding question asking voters whether they agree that the archdiocese has failed to work with the city's neighborhoods to mitigate the impact of Catholic parish and school closings."  William Donohue, of the Catholic League for Religious and Civil Rights, responds:  ``[This] not only smacks of total disrespect for the principle of separation of church and state, it smacks of bias,'' he said. ``If the goal is accountability . . . why focus exclusively on the Catholic Church? This is sheer, unadulterated demagoguery.''

Rick

Notre Dame's new provost

My own University of Notre Dame has a new provost, Dr. Thomas Burish, formerly president of Washington & Lee University and provost at Vanderbilt.  I was particularly -- and favorably -- struck by Dr. Burish's letter to his soon-to-be-former colleagues at W & L:

Notre Dame is my alma mater. It aspires to be both a great academic institution and a great Catholic institution. This latter attribute, being a Catholic institution, is why I went there as an undergraduate, and is a major reason I am now drawn back to it. The challenge of wrapping together this faith-based heritage while further strengthening its academic excellence is a rare opportunity and, for me, a special dream. I did not anticipate this opportunity or seek it, but am excited by it and am grateful for it.

That Dr. Burish has these views -- and is willing to share them with his W & L colleagues -- strikes me as great news for Notre Dame, and perhaps also, more generally, for Catholic education.  God bless him.

Rick

Never Let Me Go

Last week (between mountain-biking outings and micro-brew tastings in Colorado), I read Kazuo Ishiguro's new novel, "Never Let Me Go."  I won't give much away, except to remind readers of what every reviewer has already divulged, namely, that the book is "about" clones who are created for the purpose of donating organs until they die.  Run, don't walk, to your bookstore, buy the book, and read it.  Ishiguro explores, using his usual wonderful prose, questions to which we've returned again and again on this blog, namely, what are we, what are we for, and does it matter that we are what we are and that we are for what we are for?

Rick

Althouse on Roberts and recusal

Here is law-prof blogger Ann Althouse's take on the "would Roberts recuse himself in abortion cases" debate.  And here is an op-ed by Jonathan Turley, in which he (in my view) appears to misunderstand the issue entirely.  Turley confuses a decision to recuse -- i.e., a decision not to take an action as a judge that would constitute culpable cooperation with evil -- with a decision to allow one's "personal religious views" to color one's interpretation of the law.

Rick

UPDATE:  Paul Horwitz at Prawfsblawg has a good post on Turley's error.

Hartnett on the Catholic Judge

Seton Hall law prof Ed Hartnett has emailed me his own thoughtful take on our conversation.  It's well worth reading and pondering: