Mirror of Justice

Crisis at Ave Maria Law

Many MOJ contributors have had some sense of the evolving crisis at Ave Maria Law school. Below is a statement of the Association of Ave Maria Law Faculty, which group represents all but a tiny portion of that school's faculty, that provides a very full picture of the seriousness of that crisis.    -- Mark

What's going on at Ave Maria School of Law?

We have chosen to reply as a group to repeated inquiries concerning recent events at Ave Maria School of Law (AMSL). We do so to indicate the extent of our agreement concerning the serious nature of the crisis unfolding here, the need for fundamental change if AMSL is to continue to exist and serve its Mission, and to appeal for input from our colleagues in the wider legal academy.

Until now, the majority of the faculty has not made public the outrageous behavior of the Law School's administration. We have remained silent in the hope of minimizing damage to our school, believing that responsible parties would set matters right, and out of fear of escalating acts of retaliation. At this point, however, we believe it is important to allow the larger legal community to know the reality of the way AMSL's administration has abused the power with which it has been entrusted.

Those who have not been closely following events at AMSL, nonetheless, may have heard of a number of events over the last year or so. To summarize: last spring, a substantial majority of the faculty issued a vote of "no confidence" in Dean Bernard Dobranski. The response from the AMSL Board of Governors, led by Board Chairman and AMSL's largest funder, Thomas Monaghan, was a terse restatement of its support for the Dean. This rejection of open discussions, combined with retaliatory actions by the Dean, exclusion of the faculty from governance of the school, and serious violations of academic freedom were subjects of an investigation by an ABAfact-finder earlier this year. In the midst of this ABAprocess, the AMSL Board voted in effect to close AMSL and transfer its assets to a new law school to be located on the campus of Ave Maria University, in southwest Florida.

Disagreement over this proposed move is thus only one aspect of the difficulties at AMSL. Problems at AMSL go much deeper, and are much more structural.  Since the vote of "no confidence" in Dean Dobranski in April 2006 over issues of faculty governance and academic freedom, he has used threats and retaliation to try to silence members of the faculty from voicing concerns about his leadership and that of Mr. Monaghan. A majority of the faculty whom the Dean believes to be disloyal to him have been punished financially and through manipulation of the promotion and tenure system. One tenured faculty member has been repeatedly threatened with termination based upon bizarre allegations. Junior faculty members have been threatened that their careers would be harmed if they associate with disfavored tenured faculty. We have also been informed that Dean Dobranski had instituted a system of monitoring our emails and computers, and student research assistants have been closely questioned about research projects of disfavored faculty members. All tenured faculty members have been removed from the Chairs of faculty committees, and such chairs are now in the control of the few faculty members whom the Dean believes to be loyal to him. Cumulatively, such intimidation and bullying has created an intolerable atmosphere of fear and contempt at our school.

We repost here, as an example of this atmosphere, a portion of an email by AMSL's President and Dean Bernard Dobranski to the faculty sent on Wednesday, March 14 - eight days before the school was visited by an ABA fact-finder investigating complaints regarding the manner in which AMSL is being run.

The full memo is available on a web site established as a repository of documents related to the various educational enterprises run by Mr. Monaghan [html; PDF]. Here is an excerpt:

Ave Maria School of Law resources, including the Law School email, may not be used ... for any ... activities or purposes that are intended to or are reasonably likely to undermine or damage, tangibly or intangibly, the successful operations of our Law School. These limitations do not apply to activities conducted by a faculty member on his or her own time and using his or her own resources. These limitations, however, do not imply any permission to engage in activities injurious to the Law School, which activities, of course, are impermissible for any employee, regardless of the equipment used or location of the activity. Moreover, these limitations do not interfere with a faculty member's legitimate right to interact with the American Bar Association in any way, nor do they interfere with any other legitimate activities of and expressions by faculty members, consistent with the concepts of "The Centrality of the Mission" and "The Definition and Role of Academic Freedom" as set forth in the Faculty Handbook.

If any faculty member is considering using Law School resources in such a way as might be contrary to the limitations described here, he or she should fully advise me or Dean Milhizer in writing of the contemplated use and we will notify the faculty member in writing whether the contemplated use is prohibited.

We find this memo, in the context of current events, to be breathtaking in its audacity. The Dean of a (currently) ABA accredited law school is threatening to fire faculty whom he finds, in his own opinion, to be acting in any way he thinks might possibly cause harm to AMSL. He also appears to be demanding that faculty get prior approval for use of AMSL resources, thereby imposing prior restraint on their speech and conduct. Such threats (which were reiterated in a memo to all system distribution and alumni [html; PDF]) would be chilling in any atmosphere, let alone that at AMSL, which is under ABA investigation, and where the Dean already has had a vote of "no-confidence" registered against him by a substantial majority of the faculty.

In light of this conduct, a substantial majority of the faculty of AMSL has no plans to participate in relocating our beloved school to Ave Maria Town in Southwest Florida. No evidence has been presented that would suggest that the move, which was recently approved by our Board of Governors, is in the best interest of AMSL.  Indeed, it appears that the move is being pursued primarily to benefit Ave Maria University, an institution that is wholly unrelated to the Law School.

Prior to the Board of Governors’ vote to "relocate" the school, a substantial majority of the faculty, having been denied repeated requests for both a written relocation proposal and a meaningful opportunity to comment as a group on the wisdom of this move, sent a resolution to the Board opposing the proposed move and explaining that opposition [PDF]. There are all sorts of reasons why one would find it imprudent to leave a well-populated area, where a law school has made valuable contacts with the profession and for its students over the last seven years, to move 1,300 miles to a new and untested community, isolated from most of the kinds of social networks in which legal communities thrive. The resolution pointed out many of these concerns in a detailed response [PDF] to the administration's feasibility study regarding the move [PDF 5.3MB]. Given the recent track record of the poor governance of AMSL under the current administration, and given that the same governing authority will exercise an even greater range of influence - directly or indirectly - over all of Ave Maria Town, we cannot subject our institution, ourselves, and our families to the whim of that authority over the entire community: university, housing, shops, town, public services, children's schools, and Oratory.

In fact, no more than a handful of faculty members will be moving to Florida.  In combination with other challenges facing Ave Maria University [overview], it is our opinion, based upon the information made available to us and the opinions of knowledgeable persons whom we have consulted, that the ABAwill not acquiesce to the move. If AMSL moves without such acquiescence, it stands to lose its most valuable asset, its ABA accreditation.

The fear is growing that Dean Dobranski and Mr. Monaghan now intend to abandon our school, whether or not a new one eventually will arise in Florida. Indeed, at a recent meeting with AMSL students, the Dean stated that the administration has no contingency plan in the event that the ABA refuses to acquiesce in the move, and that two Board members believe that AMSL is a "failed experiment."

This "spin" on events unfortunately is not unexpected. Mr. Monaghan has already abandoned and destroyed two colleges (Ave Maria College in Michigan  and Orchard Lake Saint Mary's College, also in Michigan). So it is sadly unsurprising that he is behaving in this manner. More disappointing is Dean Dobranski's conduct, refusing even to meet with his own faculty to discuss issues of governance and the move - insisting, in effect, that they are none of the faculty's business. Most disappointing is the conduct of the Board, which has (or had) among its members two cardinals and four prominent Catholic professors.

Acting as if the move to Florida is a fait accompli before acquiescence has been granted, and failing to have a contingency plan should it be denied, is reckless. In view of this failure, faculty members have investigated options for maintaining a program of sound Catholic legal education in Ann Arbor, and have uncovered several promising avenues. We ask for support for these efforts in the near future from our colleagues around the country.

What is more, in our view calling a living community of hundreds of human persons a "failed experiment" reveals a remarkable disregard for basic Christian values. Furthermore, the charge of failure is demonstrably false. On the contrary, as our high bar passage rate and judicial clerkship numbers demonstrate, our school actually is a phenomenal success. The only failure has been the Board's inexcusable failure to provide leadership in the face of the current crisis.

As evidenced by a number of documents available on the internet [link], as well as by some rather angry, though sometimes humorous blogs [link], and by the experience and general mood and convictions of faculty and students, AMSL is engulfed in an atmosphere of fear - fear for one's job, and for one's future should one cross an administration that has shown itself determined to squelch all dissent. Faculty members, both tenured and tenure-track, have been threatened with termination. The Dean has pocketed ballots and stalked out of faculty meetings unilaterally declaring them adjourned.

Although the faculty has maintained confidentiality regarding all the specific reasons for the vote of no-confidence in Dean Dobranski, one thing not confidential is the reaction of the Board of Governors to a detailed list of the Dean's abuses: a bald reiteration of complete confidence in Dean Dobranski, followed by a year long refusal to have any substantive discussions with the faculty regarding issues of academic freedom and faculty governance. The Board also has refused repeated requests for intervention to see that the faculty's views are taken into account in regard to the decision to close down the school and transfer its assets to Florida.

We ask our colleagues at Mirror of Justice and elsewhere whether it is in keeping with Catholic Social Teaching - or even with basic standards of human decency - for a Board of Governors to simply ignore the faculty's detailed allegations of the denial of appropriate faculty governance and academic freedom? Are threats to people's jobs, should they dare speak out against a major change that may (indeed most likely will) bring ruin to the school, acceptable? What do conditions at AMSL tell us about Catholic legal education - especially if, as appears the case, Catholic law faculty from other institutions who serve on our Board of Governors are willing to let the school be destroyed in this manner? Finally, of course, we would ask for prayers and advice on how best to deal with this deplorable situation.

In Christ,

The Association of Ave Maria Faculty

Catholic Justices and the Death Penalty

Rick says:

I disagree with Eduardo (as I suggested, in response to Michael, here and here) that there is "authoritative church teaching" on the question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim is required to vote to reverse that denial.

Of course, I was mostly joking. On the other hand, how's this for a defense of my argument:

Given the immorality of the death penalty in all but exceptional cases (what I take to be the authoritative teaching of the Church) and given an American death penalty that goes substantially beyond what the Church would allow, it seems to me that Catholic Justices are under at least some moral obligations with respect to the death penalty.

It may be that Catholic justices are under (moral) obligations akin to civil disobedience.  This could mean the sort of Brennan/Marshall dissenting from all applications of the death penalty.  Or, alternatively, if you think their role-based obligations as justices to "The Law"  trump their moral obligations, perhaps they are under an obligation to resign so as not to participate in the machinery of death put into place by the law.   I'm reminded of this passage from Evangelium Vitae:

Sometimes the choices which have to be made are difficult; they may require the sacrifice of prestigious professional positions or the relinquishing of reasonable hopes of career advancement. In other cases, it can happen that carrying out certain actions, which are provided for by legislation that overall is unjust, but which in themselves are indifferent, or even positive, can serve to protect human lives under threat.

The first sentence seems to me to point towards withdrawal from positions of power and prestige in favor of one's moral obligations towards human life.  But that last sentence suggests a third possibility:  If there is a plausible legal position according to which "a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim" could vote to grant habeas (an assumption that I think may be warranted in this case by the fact that five justices in fact voted to grant such relief), while still being technically correct in a legal sense, then I do not think that it is utterly implausible to suggest that a judge (Catholic or otherwise, although we're talking about Catholic judges) has a (moral) obligation -- rooted in the immorality of the death penalty (an immorality affirmed by the authoritative teachings of the Church) -- to do adopt that position. 

Perhaps even this last possibility is too strong.  I'm not deeply committed to it -- I'll admit that it's a very complicated issue that I need to think about much, much more carefully.  But I did want to expand on the issue a little bit in response to your facetious reply to my facetious post (not that my post deserved much better).  In short, I was not saying (even jokingly) that the Church has a position on the narrow legal question, but I did mean to suggest that the general immorality of the death penalty imposes some obligations on someone in a position of authority with the discretion to act accordingly. 

Evangelical Theologian of "Ancient-Future Faith" Dies

There are many reasons why the divide between evangelicalism and Catholicism and other liturgical forms of Christianity has narrowed recently.  But one of them is the work of Robert Webber, emeritus Wheaton College theologian who traveled the road from a Bob Jones University undergraduate education to writing a series of books commending to evangelicals the patristic tradition and the "ancient-future faith."  Webber died on Friday.  R.I.P.

Tom

Lethal injections

The Boston Globe editorializes today about new studies on lethal-injection procedures.  Here's a bit:

The debate over the death penalty in America should not hinge on whether the final agonies caused by any particular execution method are unconstitutionally painful. There are many other reasons why the death penalty should be abolished: It does not deter crime; it is applied unevenly across jurisdictions and demographic groups; it is irrevocable, and the dozen-odd death row inmates exonerated by DNA evidence underscore the danger of executing the innocent.

"Too much civil society"?

One theme that runs through conversations about Catholic legal and political theory involves the importance of "mediating institutions" and civil society.  So, this Weekly Standard piece, by Gerard Alexander, "The Nonprofit Industrial Complex:  Is there such a thing as too much civil society?", might provide a good occasion for reflection:  What, exactly, do we want non-state institutions to do, and to look like?

Answer to Rick's Question

Rick writes:  "I think Michael might actually have been saying something a *bit* different -- i.e, not so much that the Catechism should inform the 'merits' of the technical question presented but that it should inform a judge's decision about how to vote in cases of genuine, reasonable uncertainty about the legal merits of the question presented.  Michael?"  That's it, Rick.  Thanks!

Reminder of Upcoming Conference

University Faculty for Life is a non-denominational, multi-disciplinary organization which welcomes the membership and participation of all pro-life faculty members in institutions of higher education. Its focus is on issues related to abortion, infanticide, and euthanasia. Many papers presented at its annual conferences are quite profound. And the guys who go are fun. It's one of my very favorite yearly events, one which I try never to miss. (Full disclosure: I'm on the Board, so I have to go.)

Its 2007 conference will be June 1-2 at Villanova University near Philadelphia, PA. Attendance is open to current or former members of college, university, and seminary faculty and their spouses, and to others by individual request.

The presentations will begin at 2:00pm the afternoon of Friday, June 1st. Registration is only $60, which includes a wine and cheese reception, continental breakfast, refreshments between sessions, lunch, and the concluding banquet on Saturday evening. Accommodation is available in guest apartments on Villanova’s campus. Registration form.

The plenary speakers at the conference will be Helen M. Alvare, Associate Professor of Law at Catholic University’s Columbus School of Law and David L. Schindler, Dean of the John Paul II Institute for Studies on Marriage & Family. There may still be time to submit your own papers. Check it out at http://www.uffl.org/conference.htm

"Religion and the Common Good"

Here's Archbishop Chaput, on "religion and the common good."  A bit:

Only one question really matters. Does God exist or not? If he does, that has implications for every aspect of our personal and public behavior: all of our actions, all of our choices, all of our decisions. If God exists, denying him in our public life—whether we do it explicitly like Nietzsche or implicitly by our silence—cannot serve the common good, because it amounts to worshiping the unreal in the place of the real. . . .

We most truly serve the common good by having the courage to be disciples of Jesus Christ. God gave us a free will, but we need to use it. Discipleship has a cost. Jesus never said that we didn’t need a spine. The world doesn’t need affirmation. It needs conversion. It doesn’t need the approval of Christians. It needs their witness. And that work needs to begin with us. Bernanos said that the “scandal of Creation [isn’t] suffering but freedom.” He said that “moralists like to regard sanctity as a luxury; actually it is a necessity.” He also said that “one may believe that this isn’t the era of the saints; that the era of the saints has passed. [But] it is always the era of the saints.”

The only thing that matters is to be a saint. At least we can try. And if we do, God will take care of the rest.

"Talking past each other" on Catholic judges?

My friend Eric Claeys (SLU / George Mason) wonders if Eduardo, Michael, and I (see below) are "talking past each other" in our recent posts about Catholic judges.  Here's what he writes:

I've been reading your exchange with Michael Perry and Eduardo Penalver about the recent SCt death penalty cases and the Catholic Church's teaching.  Thus far, it's seemed to me that the three of you are talking past each other. . . .  Reading between the lines, I think Eduardo and Michael are assuming that Supreme Court Justices should incorporate the Catechism's teaching on the death penalty relatively directly into their analysis of the merits of the questions presented.

 

I read you to be assuming that the Catechism's teaching plays a relatively remote role in federal habeas, for reasons having to do with federal-state comity, the functions of appellate review, and rule-of-law respect for the habeas statutes

This difference is important, because it relates to a more general question how prudential Church teachings apply to different actors in a government with separated or specialized offices.  So, to each of you: How should a Catholic federal appellate judge reconcile his religious and his legal obligations when procedural rules and habeas statutes focus the merits of an appeal on considerations that, from the Catechism's standpoint, seem not particularly important -- or even irrelevant to the basic question of justice?  Inquiring minds want to know.

I think Michael might actually have been saying something a *bit* different -- i.e, not so much that the Catechism should inform the "merits" of the technical question presented but that it should inform a judge's decision about how to vote in cases of genuine, reasonable uncertainty about the legal merits of the question presented.  Michael?

War by Sonogram

In December, Nicholas Eberstadt delivered a speech at the UN on "the global war against baby girls."  Joe Carter comments:

Early this year, the British medical journal Lancet estimated the male-female gap at 43 million with 100 million "missing girls" who should have been born but were not. Fifty million would have been Chinese and 43 million would have been Indian. The rest would have been born in Afghanistan, South Korea, Pakistan, and Nepal. . . .

What is fueling this crisis? Eberstadt credits the "freakish" ratios to the "fateful collision" between (a) overweening son preference, (b) the use of rapidly spreading prenatal sex determination technology coupled with gender-based abortion, and (c) the low or dramatically declining fertility levels.

Even if we set aside the moral horror of a world that is killing its daughters, this oft-ignored trend of female feticide could pose a greater threat than many of the high-profile concerns that are touted by the media. For instance, the Chinese government says that by the year 2020--only thirteen years from now--the men in that country will outnumber women by 300 million. Imagine hordes of men, numbering in the hundreds of millions, who will never be able to have sexual contact with a woman, never be able to marry, and never leave a descendant to carry on their lineage.

Sargent on SNAP and vengeance

Fr. Neuhaus discusses here Mark's recent Commonweal essay, "Vengeance Time," which is critical of some of the tactics employed by advocates for victims of sexual abuse by clergy.  Here's an excerpt from Mark's (excellent) piece:

It is not enough to say, however, that bishops, priests, and the church are finally getting what they deserve. The vengeance game is a dangerous one. When the original offense is terrible, we feel empowered to do terrible things in response. Blinded by our righteous rage and convinced of our moral superiority, we may do things we later regret.

The consequences of the terrible assault of 9/11 on the innocent serve as an example. The moral horror of 9/11 provided, for a while, the sense that we were entitled to transgress our own moral boundaries. Torture seemed reasonable. Equally important, it made the rule of law seem a trivial charade. Why bother with the constitutional rights of Guantánamo prisoners? Why not enact legislation invading the privacy rights of millions of Americans, if that would make it easier to punish our enemies and protect ourselves from harm? In the “war on terror,” it seems that anything goes. In the purity of our victimhood, we can do no wrong-or so we think until wrong has been done.

Our self-righteousness makes us impatient with the law. The law’s careful balancing of rights and interests, its goal of evenhandedness, and its insistence on due process seem to be pettifoggery, mere “technicalities,” and an obstacle to achieving the justice we know in our hearts. This impatience with the law, however, can lead to injustice. The nauseating image of rich white jocks at Duke drugging and raping a black woman at a party led a prosecutor to abuse his prosecutorial discretion, violating the most basic rules for deciding whether to prosecute. The terrible nature of what could have happened made the prosecutor and many members of the Duke and Durham communities indifferent to the legal obligation to prove what actually happened. Who needs the rules of evidence when we somehow know that something awful took place?

"God is not great"

When it comes to anti-religion stemwinders, give me Christopher Hitchens over Sam Harris or Richard Dawkins anytime.  Here is a bit:

There is no need for us to gather every day, or every seven days, or on any high and auspicious day, to proclaim our rectitude or to grovel and wallow in our unworthiness. We atheists do not require any priests, or any hierarchy above them, to police our doctrine. Sacrifices and ceremonies are abhorrent to us, as are relics and the worship of any images or objects (even including objects in the form of one of man's most useful innovations: the bound book). To us no spot on earth is or could be "holier" than another: to the ostentatious absurdity of the pilgrimage, or the plain horror of killing civilians in the name of some sacred wall or cave or shrine or rock, we can counterpose a leisurely or urgent walk from one side of the library or the gallery to another, or to lunch with an agreeable friend, in pursuit of truth or beauty. Some of these excursions to the bookshelf or the lunch or the gallery will obviously, if they are serious, bring us into contact with belief and believers, from the great devotional painters and composers to the works of Augustine, Aquinas, Maimonides, and Newman. These mighty scholars may have written many evil things or many foolish things, and been laughably ignorant of the germ theory of disease or the place of the terrestrial globe in the solar system, let alone the universe, and this is the plain reason why there are no more of them today, and why there will be no more of them tomorrow. Religion spoke its last intelligible or noble or inspiring words a long time ago: either that or it mutated into an admirable but nebulous humanism, as did, say, Dietrich Bonhoeffer, a brave Lutheran pastor hanged by the Nazis for his refusal to collude with them. We shall have no more prophets or sages from the ancient quarter, which is why the devotions of today are only the echoing repetitions of yesterday, sometimes ratcheted up to screaming point so as to ward off the terrible emptiness.

It 's more complicated . . .

I'm not sure what it means to say that the Catholic Justices who were in the majority in Carhart, or in the minority in the Texas cases, "were not motivated by the authoritative teachings of the Church."  Yes, and again, in neither case did Justices Kennedy, Roberts, Alito, Thomas, or Scalia substitute their religiously-grounded moral commitments for the law, as they understand it.  That said, and although -- to be clear -- I would like to see the death penalty abolished, I disagree with Eduardo (as I suggested, in response to Michael, here and here) that there is "authoritative church teaching" on the question whether a federal judge reviewing a state court's denial, on procedural grounds in state postconviction proceedings, of a death-row inmate's Penry II claim is required to vote to reverse that denial.

Catholics on the Court

Rick -- I think you're making this much too complicated.  If you want proof that the Catholics on the Court were  not motivated by the authoritative teachings of the Church, you just need to point to the recent Texas death penalty cases, where they all (but one) dissented from the grant of habeas relief.  This argument won't work for Kennedy, obviously.

Upon reading Gonzales v. Carhart

On a long plane flight yesterday, I had the opportunity to read Gonzales v. Carhart in its entirety. Thinking that there might be a few law journal articles in the making on this important decision, I would like to offer some of my initial thoughts to those who will be studying the case in detail as they begin to draft article manuscripts.

In essence, the majority (with the helpful clarification by Justices Thomas and Scalia) is largely correct in its analysis and legal reasoning. The plaintiffs/respondents, supporters of abortion “rights,” and the dissenters are, to borrow an expression from Stanley Fish, still wrong after all these years of questionable “abortion jurisprudence.”

The majority properly begins with a careful analysis of the statute enacted by Congress that was challenged by Dr. Carhart and the Planned Parenthood Federation. Following sound principles of statutory interpretation within the template of Constitutional adjudication, the majority reaches logical conclusions about the legality of the statute as a proper exercise of Article I authority that is subject to judicial review. I wonder if the dissenters would have joined the majority if this decision about the constitutionality of a statute involved the enactment of a law designed to protect the eggs of some bird on the Endangered Species list rather than the protection of nascent human life?

In the context of nascent human life, the majority could have done a better job in choosing its terms. The drift from using “fetal life” to “unborn child” to “embryonic tissue” confuses rather than clarifies. But, when all is done, it should be clear to the reasonable person that the majority is talking about the same subject: a young human life that is threatened by the intact dilation and extraction method of abortion.

The strong differences of the opinions of the majority and the dissenters about the post-abortion psychological health of the mother who has had an abortion raises the important question about “informed consent” that is so much a part of medical practice in the United States. This divide made me wonder to what extent abortion doctors explain to their patients what happens to the child who is the target of the abortion, regardless of the procedure and the trimester involved? As he did in his Stenberg dissent, Justice Kennedy once again explains the “gruesome” details involved with a variety of abortion procedures, including the intact dilation and extraction process that is the subject of the statute attacked in this case. It would seem that this information should be relayed to the mother who is considering an abortion, but is it? If not, what is the justification?

As I read Justice Kennedy’s description of the more commonly used “dilation and evacuation” method of abortion in which child is dismembered—caused by the “friction [of the procedure that] causes the fetus to tear apart”—I recalled an account of Thomas More’s reaction to the execution of the Carthusian monks who were convicted of treason and put to death by drawing and quartering. In both cases, the limbs of human beings are ripped from their torsos. The dissenters offered no objection to the accuracy of the procedures explained by Justice Kennedy.

While still on the matter of abortion methodology, the majority described another means that employs a poison injected into the child who is killed prior to the surgical evacuation. I wonder if those who argue that execution by lethal injection constitutes a violation of the Eighth Amendment would also argue that administering poison to a child convicted of no offense is equally offensive to our Constitutional order? I hasten to point out that potassium chloride is one of the chemical agents often employed in both procedures: abortion and execution by lethal injection. If it is cruel and unusual in the latter context (and I have no argument against this assertion), why is it also not cruel and unusual in the first?

Justice Ginsburg complained of the disregard by the majority of medical evidence provided to and considered by the District Courts. Yet, the impact of the medical evidence offered by the nurse quoted by the majority about what actually happens to a child (page 8 of the majority opinion) subjected to the intact dilation and extraction method escapes her critical eye. It seems that the reaction of the child subjected to the abortion procedure at issue—fingers clasping, feet kicking, and arms jerking—are of little concern to the dissenters when medical evidence is being examined.

Justice Kennedy and Justice Ginsburg often employ the phrase “necessary to preserve a woman’s health” in the context of the legal justification of abortion. Yet, I remain unconvinced about what standard can possibly be used medically and legally to justify abortion necessary for preserving a woman’s health. To reinforce my concern, one of the reversed Circuit Courts of Appeal itself stated that there are substantial disagreements within the medical community about whether the intact dilation and extraction method is “ever necessary to preserve a woman’s health.” If there is dispute on this method (as I suspect there is on many other methods of abortion including intact dilation and extraction), how can it be deemed “necessary to preserve a woman’s health”? It would appear that this crucial foundation for justifying any abortion procedure is not of solid construction but is more like the unstable house of cards—maybe impressive to look at but unsound in fact.

Elsewhere I have commented on the use of the phrase “anatomical landmarks” used by various members of the plaintiffs/respondents in this case to explain how the killing of a child can be justified or not. I once again make a point I have made earlier (the first time at the March 2001 Symposium convened at Catholic University by Michael Scaperlanda and Teresa Collett on self-evident truths and Catholic perspectives on the law) that it is unjustifiable to claim that a hideous procedure that kills the life of a child can be justified or not depending on the “geographic location” of the baby. I thought the “geographic location” argument was put to rest once the justification of Dred Scot was abandoned. However, it seems that I am mistaken on this point insofar as the plaintiffs/respondents and the dissenters are concerned. For them, just about any abortion can be declared legal as long as the child is located in the right place. But regardless of the child’s physical location, its human ontology remains the same.

At page 29 of the majority opinion, Justice Kennedy states that “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Justice Ginsburg scorns this statement of the majority at page 15 of the dissent where she identifies it as “an antiabortion shibboleth.” However, when she refers to the majority’s text, she leaves out the important modifier “some” which the majority used in a careful way to indicate that the “regret” about which they wrote was not universal in their view. Somehow this careful distinction escaped Justice Ginsburg in her harsh critique of those who are opponents of abortion.

Two important questions surface toward the end of the majority’s opinion. The first deals with the fact that the standard dilation and extraction method, which remains unaffected by this decision, is more brutal than the intact method which is the subject of the legislation under review. Could Congress or state legislatures, given this decision now be able to proceed to legislate against the standard method and draft legislation that could survive a legal challenge? The second and more apparent question is the statement proffered by the majority that the statute “is open to a proper as-applied challenge in a discrete case.” How long must we wait for such a “discrete” challenge? Probably not very long.

A few comments about particular points in Justice Ginsburg’s dissent remain in order. Throughout her opinion, she raises concerns about endangering the woman’s life or health. I don’t dispute the need to be concerned about a woman’s life or health. This is important. But surely the life and health of any human being must be of great concern to us all. I remain unsatisfied that the dissent or any proponent of abortion “rights” has demonstrated how the carrying to term of the child is the source of this endangerment to women. After reflecting on the procedures involved in most abortions, I must conclude that they, rather than the presence and development of the child, present the actual endangerment to the mother’s life or health. With so many “passes” through her delicate organ tissues and the possibility of laceration by medical instruments or the baby’s broken bones, it seems that most abortion procedures subject women to far greater risks than do the presence of her unborn child.

On a different front, the first footnote offered by the dissent attempts to correct the use of a term—“partial birth abortion”—when Justice Ginsburg asserts that the recognized term found in medical literature is either “dilation and extraction” or “intact dilation and evacuation.” Fair enough. But, to borrow from Will Shakespeare, a dubious act by any other name is still a dubious act.

While I am discussing the dissents distaste for certain terms, its members raise some objection to referring to doctors who perform abortions as “abortion doctors.” If this is truly a pejorative term, then it would be equally pejorative to refer to cardiac specialists as “heart doctors,” ophthalmologists as “eye doctors,” dermatologists as “skin doctors,” etc. 

The dissenters brand the majority’s decision “alarming” because it “refuses to take Casey and Stenberg seriously.” I am mystified by the fact that the dissenters are not alarmed by the fact that this jurisprudence fails to take seriously the fact that abortions kill at least one human being most of the time. This fact must be taken seriously, but it seems to escape the legal reasoning of the dissenters not only in this decision but in past abortion cases, including Casey and Stenberg, as well.

On several occasions, Justice Ginsburg concentrates on the distinction between previable and postviable fetuses that are aborted. I question how much longer this distinction can be made in light of the advances in medical sciences where the lives of embryos, fetuses, and unborn children (should these distinctions be required) are being sustained by artificial means. These medical advances would indicate that the earliest human life is viable if it can be sustained and can grow outside of the mother’s womb.

The dissent also censures the majority for selecting certain medical evidence to support its position while ignoring other evidence. The same argument can surely be made about the “authorities” upon which the dissent relies. In this context, I am reminded of a statement attributed to the late Judge Harold Leventhal about the selective use of legislative history by judges when they decide cases involving statutory interpretation: making the choice of what history is to be used is like entering a crowded cocktail party and surveying the assembled humanity in search of your friends.

In my estimation, the dissenters are on juridically thin ice when they express a particularly harsh criticism of the majority who “dishonor our precedent” of Casey, et al. Yet these dissenters were members of the majority in Lawrence v. Texas. When they penned that opinion, they showed little concern of dishonoring other precedent. Perhaps dishonor exists only in certain cases when precedent of their liking is not followed with exacting detail.

Much more needs to be said about the majority, the concurring, and the dissenting. I am confident that this task will be pursued by many in the coming months.   RJA sj

"Future of Freedom" conference

Here is an announcement for a blockbuster church-state-law conference, "The Future of Freedom of Religion:  A Dialogue," sponsored by Sidley & Austin, the American Constitution Society, and Catholic University's Interdisciplinary Program in Law & Religion.

Yet Another Front in the Battle....

From the trenches of tax law, here's the abstract of an article posted on SSRN by Paul Caron, entitled "When Does Life Begin for Tax Purposes?"

I have written before about what I call “tax myopia” - the tax law's failure to consider insights from other areas of law that would inform the tax debate. (Tax Myopia, 13 Va. Tax Rev. 517 (1994); http://ssrn.com/abstract=799007). One illustration of this theme is how the tax law has ignored insights from other areas of law on perhaps the dominant social issue of our time: when does human life begin? The question was addressed in two tax cases decided over 55 years ago, and then revisited recently.

Although Wilson v. Commissioner, 41 B.T.A. 456 (1940), refused to treat an unborn child as a person for purposes of the income tax dependency exemption, Faulkner v. Commissioner, 41 B.T.A. 875 (1940), treated as unborn child as a person for purposes of the gift tax annual exclusion. The Board of Tax Appeals justified the different results on the ground that the dependency exemption benefitted the parents while the annual exclusion benefitted the unborn child. In subsequent rulings, the Service has rejected this distinction and refused to treat unborn children as persons for both income tax and gift tax purposes. In Cassman v. United States, 31 Fed. Cl. 121 (1994), the Court of Federal Claims recently denied the dependency exemption for an unborn child but accepted the Board's facile distinction permitting unborn children to be treated as persons for tax purposes where they benefit from that treatment. Cassman thus perpetuates the schizophrenic state of the tax law in this area and ignores both basic tax principles and nontax considerations in addressing this pivotal issue.

Casey, Carhart, and the Court's Catholics

Here's an op-ed of mine, now up on Jurist, called "Carhart, Casey, and the Court's Catholics."  It's an expansion of the exchange that Prof. Geoff Stone and I had over at the University of Chicago law faculty blog.  Here's a bit:

It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.

It is, of course, hardly a secret that a Catholic justice is taught by his or her Church, and should believe, that abortion is a grave moral evil. However, all judges – Catholic or not – come to the bench with views, commitments, and experiences that shape their decision-making and reasoning. We can, and should, ask of every judge that she work conscientiously in every case to identify not her own preferred or “faith-based” outcome but the answer that is given by the relevant legal texts, rules, and precedents. As it happens, the Catholic understanding of vocation, and of justice under law, extends to Catholic judges the same invitation.

Saint Louis University

Blogger Matthew Fish has an interesting post up about the recent court decision involving the religious nature (or not) of Saint Louis University.  (For earlier MOJ comments on this case, go here).  Matthew is not a Jesuit-basher, at all (indeed, I gather from his blog that he is considering joining the Society of Jesus) so his reflections struck me as particularly worth engaging.  Here's a bit:

[A]ccording to this decision, and what seems to be the case, the Jesuits (today at least) are no longer really in control of their universities, but only merely affiliated. Of course individual Jesuits may be incompetent or may be exemplary in their respective positions, but as a corporate body, it seems that they cannot change these schools in any kind of direct way any longer. For me, this seems to point to the importance of having patience with the present attempts of the Society of Jesus to continue to faithfully live out its charism and renew itself, particularly in its educational apostolates.

Still, the question remains: can we call these (and most Catholic universities then) “Catholic”? Or are our Catholic universities in fact “secular” in mission and identity (at least, insofar as the Constitution may be concerned)?

What hasn’t been mentioned is, in my mind, the greater responsibility possessed by the local ordinary. It is his responsibility as Bishop to hold “Catholic” institutions accountable, as well as protect or warn his flock. A Bishop can always tell a University they cannot call themselves Catholic, offer the sacraments on campus, as well as tell the Jesuits not to operate in the diocese.

In the end, I am left wondering, what does it mean after all to be a

Catholic

University

? Does it mean much of anything anymore?

See also, of course, John Breen's "Justice and Jesuit Legal Education:  A Critique".

S

Just for the record ...

In response to Rick's post:

My suggestion that the situation at OHSA should be of concern to all of us for whom the life of every human being is precious--is that a controversial proposition?-- was not an effort to link the controversy over OHSA policies to the controversy over partial-birth abortion.  (I still don't know where Rick stands on the OHSA policies.)  For the record, and as I explained to my students this week:  I think Justice Kennedy got it right in the partial-birth abortion case; that is, even given Roe v. Wade, I think the decision in Gonzales v. Carhart was right.

Just as I think that Justice Kennedy got it right in the death-penalty cases.  On the reasonableness/unreasonableness issue:  Reasonableness in this context is, I think, a matter of degree.  I invite MOJ bloggers and readers to read the three death penalty cases and then decide how a Cathoilic justice--or indeed any justice for whom the life even of the most depraved criminal is precious--should have voted, all things considered--not least, that in each case the life of a human being hung in the balance.  (Which opinion(s) would you have joined or concurred in, Rick?)

About the dismissal of the U.S. attorneys:  To say, as Rick does, that the White House is entitled to dismiss them is ambiguous.  Surely Rick doesn't think that the White House is entitled--either morally or legally--to dismiss them for certain reasons.  And to say, as I did in my post, that Rick's position is complacent is to say that Rick gives no indication, in his (shoulder-shrugging) comments, of having taken seriously enough the possibility that the White House dismissed at least some of the U.S. attorneys for  morally and legally objectionable reasons.

Response to Michael

Well, Michael, my friend:  With respect to hiring and firing U.S. Attorneys, I say ("shrugging [my] shoulders"), the White House is entitled -- of course -- to do what it wants.  And, I suspect I am as clear about the merits of OSHA's policies as you are, yet I retain my doubts about whether it makes sense to assimilate debates about OSHA policy to, say, debates about a ban on partial-birth abortion. 

As for your comment about the death-penalty cases, I share your admiration for Judge Noonan.  That said, I'm curious:  Is your claim that -- since, after all, any case that reaches the Supreme Court is one about which reasonable people can disagree -- no decent judge may ever vote against a claim brought by an inmate on death row?  You and I agree that the death penalty should be abolished.  Does this mean, though, that we are precluded from thinking that not everyone on death row has a winning legal argument?

Two Responses to Rick Garnett

1.  Rick's comment re the OSHA story (here) strikes me as complacent.  (As did Rick's earlier comment about dismissal of the several U.S. attorneys, when the story first broke and I posted a piece by the NYTs Adam Cohen.  I could almost see Rick shrugging his shoulders as he said, in effect, what's the problem, the White House and Gonzales are entitled to do what they want, the U.S. attorneys are political appointees after all.)  Rick writes:  "I have no idea whether OSHA is employing sensible policies or not."  Well, I would love to hear what Rick thinks when he has had time to achieve some clarity about the matter.  (Just as I would love to hear what Rick now thinks about the dismissal of the U.S. attorneys.)

2.  In response to Rick's question to me about the three capital punishment cases decided by the Supreme Court today:  If there is room for a reasonable difference in judgments about the proper outcome of the cases, which way should the benefit of the doubt be resolved, when a human being's life hangs in the balance?  (I think I know how John Noonan would respond.).  Of course, one may say that there isn't room for a reasonable difference in judgments--that Kennedy and the four non-Catholics justices were not merely wrong but unreasonably wrong.  Ah, such confidence!  But is such confidence appropriate, much less admirable, when a human being's life hangs in the balance?

Getting it right

Commenting on the Court's capital-sentencing decisions today, Michael notes that the 5 Catholic Justices split (1-4) in ruling that the Texas Court of Criminal Appeals -- I'm quoting Lyle Denniston -- "wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing."  Michael asks, "which Catholic[s] got it right?"

I don't know.  (The opinions are here.)  I am confident, though, that the question presented -- whether a defendant's pretrial objections to jury instructions preserved for review a particular constitutional challenge to those instructions -- is one to which the Catholic faith does not supply an answer.  Do you disagree, Michael?

"A Pro-Life Issue"

Michael urges -- "urgent[ly]" -- those of us who vote Republican to "do something about the unholy folly [of OSHA employing 'voluntary compliance strategies'].  This too, after all, is a pro-life issue."

Is it?  I mean, is it a "pro-life issue" in a way that distinguishes it from any question -- or, at least, many, many policies -- of regulatory policy?  I have no idea whether OSHA is employing sensible policies or not.  But, I am confident that OSHA is not acting in a manner that involves the constitutionalization of a license to kill human fetuses.  Certainly, I concede the rhetorical usefulness of calling this a "pro-life issue", but isn't there a non-trivial risk of missing the point associated with suggesting that, say, the question whether the government should fund abortions is really the same, and of the same import, as the question how best to promote workplace safety?

Notice How the Five Catholic Justices Split in these Capital Punishment Cases

And which Catholic(s) got it right?  Justice Kennedy or Justices Scalia/Thomas/Roberts/Alito?

April 25, 2007

Supreme Court Throws Out 3 Death Sentences
ASSOCIATED PRESS  

Filed at 11:19 a.m. ET

WASHINGTON (AP) -- The Supreme Court threw out death sentences for three Texas killers Wednesday because of problems with instructions given jurors who were deciding between life in prison and death.

In the case of LaRoyce Lathair Smith, the court set aside the death penalty for the second time. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.

The cases all stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might cause them to impose a life sentence instead of death.

The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the majority.

''When the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence...the sentencing process is fatally flawed,'' Stevens wrote in Abdul-Kabir's case

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Roberts took aim at his colleagues in the majority in dissents he wrote in the Abdul-Kabir and Brewer cases. The court should have deferred to lower court rulings against the defendants because there was no clearly established federal law that judges could have followed to grant relief.

''Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at a Taco Bell who was stabbed and shot in a failed robbery.

In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect that Smith had suffered as a child.

The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.

Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to take into account the mistreatment and abandonment that contributed to his violent adult behavior.

The same sentencing problems applied to Brewer, convicted of fatally stabbing 66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo flooring business and robbed of $140. Brewer was abused as a child and suffered from mental illness, factors his jurors weren't allowed to consider, according to his petition.

The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer and Abdul-Kabir.

Forty-seven inmates on Texas' death row were sentenced under the rules that the state abandoned in 1991.

The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.

Don't read it

You won't want to read the second installment of vol. 52 the Villanova Law Review that has just become available online and in print.  Don't even consider glancing at the intellectual product of Villanova's first annual Scarpa Conference on Law, Politics, and Culture, the topic of which was "From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture."  Please don't let your curiosity lead you to our very own Rick Garnett's "Church, State, and the Practice of Love" or Amy Uelmen's ""Reconciling Evangelization and Dialogue Through Love of Neighbor."  And since no one will be tempted by Cardinal Dulles's keynote address "The Indirect Mission of the Church to Politics," there's no risking in mentioning it here.

And while I'm at it, please don't mark your calendar for the next Scarpa Conference on Law, Politics, and Culture that will be held at Villanova on October 16, 2007.  You certainly won't want to hear Justice Scalia, or Paul Kahn (Yale), or James Stoner (Louisiana State), or Jean Porter (Notre Dame), or Jeremy Waldron (NYU) on "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question."