Tuesday, July 17, 2018
The Center for Public Justice (CPJ), just released a powerful report: “Time to Flourish: Protecting Families’ Time for Work and Caregiving”, as part of CPJ initiative called Families Valued "that advances workplace practices and public policies that honor both work and family care". CPJ is "an independent, nonpartisan organization devoted to public policy research and civic education with a distinct theological lens. Working outside the familiar categories of right and left, conservative and liberal, the Center for Public Justice seeks to help citizens and public officeholders respond to God’s call to do justice."
The report is an elegant brief for the need to address the deplorable lack of support for family life in this country. It draws on a wide spectrum of Christian theological sources, but offering concrete, contemporary examples of the problems, as well as practical suggestions for policy changes. An Op Ed in today's Christianity Today by one of the co-authors expresses the hope that the some recent indications of bipartisan support expressed at a recent Senate subcommittee hearing on paid family leave (including a proposal championed by Ivanka Trump) might lead to some changes. Hear, hear!
I really appreciated this strong editorial from America, "Anyone who recognizes the humanity of the unborn should support the nomination of Judge Kavanaugh." It concludes with this:
If Roe is overturned, continued Catholic advocacy for a comprehensive medical and social safety net for expectant mothers will be crucial in order to save lives and render abortion an even less appealing choice to the public conscience. At this juncture, anyone who recognizes the humanity of the unborn should support the nomination of a justice who would help return this issue to the legislative arena. Overturning Roe would save lives and undo a moral and constitutional travesty.
Thursday, July 12, 2018
On Facebook the other day, I wrote (I think it was a conversation with Rick!) that the Catholic parishes had preserved a greater element than Protestant congregations of bringing people together across political/cultural divides, because the parishes are more geographical and you don't have the menu of options (like Protestants) do to fit your personal taste. Of course, then I read this.
"As traditional parishes decline, 'personal parishes' find new interest" (National Catholic Reporter)
Increasingly churchgoers are bypassing neighborhood parishes in favor of faith communities that deliver what they are seeking.
Catholic bishops are recognizing the phenomenon and are increasingly willing to designate "personal parishes," communities formally recognized by bishops for particular groups of Catholics versus traditional parishes which minister to Catholics in a geographic territory.
Wednesday, July 11, 2018
From the time that I first learned to read, I fell in love with science fiction and fantasy. Before I was out of elementary school, I had devoured the “Lord of the Rings” trilogy, not even aware that it was the subject of literary studies in college. The greatest works of this genre are not merely an escape from the pedestrian real-world, but give us a new perspective on our human psychology and culture from a completely alien (sometimes truly, alien) perspective.
I’ve been watching the conclusion to the multi-year series, “12 Monkeys” on television over the past week. The story follows the common pattern of time-travel and a future post-apocalyptic world, but adds the distinct twist of an antagonist who seeks to end time altogether by deliberate paradox so as to be able to abide forever in favored moments.
The script is amusing and, at times, profound. I was particularly taken in the closing episodes by the following line, which I’ve slightly rewritten below. This character grew up in the ruins after a virus had killed nearly everyone, struggling to survive, even to find food and avoid violent death. She ends up being transported back through time to a period close to our modern day in New York City. Based on her observations of urban Americans, especially those in their teens and twenties who seem always to be wedded to their cell phones, she offers this damning summation:
"They have everything, all the time, but see nothing. Their world is full, but they are empty."
Let us pray that we will always be the witness for something more, so that those around us may seek a full soul, rather than the emptiness of a world.
The latest issue of Notre Dame Magazine (which is, I have to say, head and shoulders above any University/alumni magazine I've ever encountered) has essays by, inter alia, John Nagy and Kenneth Woodward on keeping, and losing, the Faith. Both draw heavily on the work of my friend and colleague in sociology, Christian Smith. These are not, strictly speaking, "legal theory" pieces, but they do prompt thinking about the ways that culture (which is, of course, shaped by law even as law is "downstream" from culture) creates the conditions and context within which the Faith either is, or is not, transmitted and in which young people are formed.
Here's just a bit from Nagy:
Here’s the core of Smith’s findings: The religious identity that young Catholics establish as children living in their parents’ homes is probably what they’ll carry with them through life. One’s faith practices remain stable from childhood into adulthood. Less frequently, they decline. Late bloomers are a rare third, religiously speaking. The point is that most Catholic kids aren’t going to Mass now and they won’t start when they’re older.
Interesting, though, is what your generation hasn’t lost. Other studies of trends in American religion have found that, churchgoing aside, people your age retain their wonder, their spiritual wellbeing, their belief that life has meaning and purpose — at levels indistinguishable from their parents and grandparents. Smith disagrees with some of that but notes that you all are slightly more likely to pray daily, to believe in an afterlife, to affirm the Bible’s sacred character. That doesn’t mean you’re reading it, or getting to know the God who is revealed in it. Which means your friends are less and less inclined to talk about religion, the sacred, the eternal — or even life’s purpose — in articulate and meaningful ways.
That to me suggests we’re losing something essential to what it means to be human — and that’s why I worry. . . .
Tuesday, July 10, 2018
Judge Brett Kavanaugh's scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial "neutrality." I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.
For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann's book on statutory interpretation), he wrote: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges." Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: "I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.
It's a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change.
Kavanaugh's primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries--clear or ambiguous--to settle on. Kavanaugh argues that in consequence a judge's predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it's off and running with the substantive canons of interpretation.
Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her "best reading of the statute," guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms ("dogs, pigs, sheep, and other animals" should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that "other animals" should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the "common denominator." But I'm not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh's "best reading of the statute" approach, one which he agrees must make use of context.
The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply "finding" clarity/ambiguity, of the judge's predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public.
Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, "rather indeterminate," and at worst, "empty of real, determinate, objective meaning." They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are "mood-setters." And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.
Or consider the issue of exceptions to certain constitutional rights--the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral--non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas's dissent in Whole Woman's Health v. Hellerstedt). But one can see a critical unity in Kavanaugh's objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.
Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: "At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases." And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised "history and tradition," together with "precedent," as important for his judicial method in his acceptance last night.
We'll have to wait and see if and how these threads come together if he is confirmed.
CNN asked me to weigh in on President Trump's pick last night. Here's the full commentary. (Glad for the many conservative voices who know Judge Kavanaugh much better than I; and glad they asked me as a counter-weight to voices from Planned Parenthood and NARAL.)
Here's what I said:
I have to admit it: I was hoping President Trump would choose Judge Amy Coney Barrett. Brilliant, courageous, and quick on her feet, the professionally and personally esteemed mother of seven puts to rest -- in her very person -- the central pro-choice feminist assumption that bearing and raising children impedes women's serious engagement in professional and public life.She would have brought true diversity to the Court on the most rancorous constitutional issue of our day, underscoring how an intellectually astute woman need not acquiesce in the unquestioning abortion rights dogma that has held the cause for women's rights hostage for far too long now. And she would have been able to make the case the best way possible: debunking the sham legal reasoning that has upheld the putative right for decades by day and blazing an alternative path with her family by night.Comparatively, President Trump played it safe: Judge Brett Kavanaugh is a legal all-star, an accomplished jurist, and a darling of the conservative judicial establishment; he can be trusted by friend and foe alike to interpret the Constitution as it is written. A solid constitutionalist, Kavanaugh will join those on the Court who are deeply skeptical of its current (internationally extreme) abortion jurisprudence. But with Kavanaugh rather than Coney Barrett, the optics do not bode nearly as well.Should the President have another chance, and should that chance come in the form of the retirement of an aged Justice Ruth Bader Ginsburg, Trump should pull the trigger and nominate Coney Barrett. Our country desperately needs the opportunity to debate not only abortion, but to see how the autonomy feminism Ginsburg has long represented should pass away with its most cherished leader.A dignitarian feminism, by contrast, would recognize both that women and men are of equal dignity and are duly encumbered by their shared responsibilities to the vulnerable and dependent -- in their own families and in the community at large. Coney Barrett would not only serve the Constitution better than most jurists of our time; she would reveal, by the very integrity of her life, a more dignified way forward.
Monday, July 9, 2018
As some MOJ readers have noticed over the years, sometimes the ads that pop up on our site are ones that don't seem to fit very well with the mission and character of this blog. Most recently, several readers have informed me that they have seen various "donate to Planned Parenthood" ads when they visit.
I hope it goes without saying that we do not select or endorse those ads. The ads a reader sees are a function of that viewer's own web activity and the content of the site in question. (So, because abortion is often discussed at MOJ, and many MOJ readers probably read about issues connected to abortion, the Court, judicial nominations, etc., the Algorithms in the Sky put up Planned Parenthood ads.) We are not able to block, ex ante, particular advertisers.
But . . . viewers can! Click on "ad choices triangle" in a particular ad and simply clicking on the "X" will let you tell Google that you don't want to see that particular ad anymore. We are sorry for the inconvenience.
Sunday, July 8, 2018
Late last week in a rally, President Trump dissed George HW Bush's "thousand points of light" phrase, which Bush used in the 1988 campaign as an image for volunteerism for the common good in a civil society:
"What the hell was that, by the way, thousand points of light? What did that mean? Does anyone know," said Trump. "I know one thing: Make America Great Again, we understand. Putting America first, we understand. Thousand points of light, I never quite got that one."
Commentators focused on how Trump's riff was mean to HW. But it and other riffs like it are harmful to religious freedom. Granted, Trump's Supreme Court picks are more likely than those of other presidents (e.g. HRC) to take religious freedom seriously across the range of applications; that's a major reason, it seems, why evangelical Christians supported him. (All of the short-listers for the new seat give strong indicia of supporting religious freedom. And I say this even though I strongly believe the Court dropped the ball on the travel ban--because my guess is these nominees will be pretty strong on Muslim freedom outside the immigration context.)
But however significant the short, even medium, -term benefit to religious freedom from a Court appointment, one must also reckon with the long-term harm to religious freedom that Trump has done by encouraging the undercutting of many of the reasons a society would care about protecting religious freedom. Last week's riff dissed the very concept of serving the common good through a plurality of institutions in a diverse civil society. Trump is beckoning conservative Christians, especially evangelicals--who seem to be quite willing to follow his pied piping--to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others. That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.
This point is an application not only of multiple Mike Gerson columns, but also of Marc and Kevin's fine Times op-ed of last week. The culture will matter in more pervasive, long-lasting ways than the new justice(s). And evangelicals are risking collaborating with Trump in irreversibly degrading their own culture.
How to lose credibility by making a fair point in an unfair way, Michael Sean Winters on Amy Coney Barrett edition
Michael Sean Winters recently made a fair point in a snide and sloppy way. The end result was to illustrate a different point entirely.
The fair point-- better put here by Rick Garnett last fall--is that "it is not inappropriate for senators to question judicial nominees ... about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role."
The point Winters actually illustrated, though, is that he cannot be trusted to fairly represent contemporary Catholic legal thought about American constitutional law.
Winters's post is a gallimaufry of ill-informed opinion about legal matters, en passant slimes of people and groups, and intramural Catholic posturing. It does not proceed analytically, but moves on to another point before it finishes developing the argument for a particular assertion. And sometimes there is no argument to be found. In what follows, I address two of Winters's main points as I can best reconstruct them and then explain why the framework he uses is unfortunate.
My two main points in response to Winters are (1) that Barrett's religious affiliation does not put the burden on her to counter a presumption that she lacks independence, and (2) that Winters does not understand originalism and textualism very well. As to the framework, it is regrettable that Winters uses Barrett's potential nomination principally as a vehicle for Catholic intellectual infighting.
1. Membership in People of Praise is not prima facie evidence of a lack of sufficient judicial independence.
In discussing how others have covered Barrett's membership in People of Praise, Winters writes that "it would be irresponsible not to ask questions about the independence we want in a judge, independence that membership in this group would seem to preclude." Take a look at that last clause. A fair reading is that Winters believes "membership in [People of Praise] would seem to preclude" Barrett's possession of "the independence we want in a judge."
This charge is very serious. Yet Winters offers precious little argument or evidence in support. It would be helpful to know if he actually believes it.
Winters offers no reason to think that People of Praise's distinctive beliefs and practices include distinctive beliefs about how Catholic faith informs one's performance of the judicial role. Indeed, Barrett's co-authored article on this issue written twenty years ago is a model of engagement with the Catholic intellectual tradition on this topic. (Incidentally, that article is about cooperation with evil in the death penalty context, not what Winters dismissively describes elsewhere in his post as "issues of pelvic theology.")
The most charitable reading may be that Winters was just being careless here. Perhaps he was making the narrower point that it's reasonable to inquire into the beliefs and practices of a religious group to which a nominee belongs.
A clue that this may be so comes in his first-person declaration: "I am not sure how similar Barrett's life is to 'millions upon millions' of her fellow Catholics: Some of what I know about the 'People of Praise' gives me the willies." This reminded me of Senator Feinstein's "very uncomfortable feeling" about Barrett (and Winters's scare quotes are a nice touch). Feinstein knows many Catholics, like her colleagues Richard Durbin and Tim Kaine, and she seems totally comfortable with them. Barrett, though, seemed different.
Nobody should have a problem with asking a nominee questions about her understanding of the relationship between her religious beliefs and practices and her judicial role. But it's much more of a problem--deplorable, one might say--for Winters to justify those questions by reference to his (or anyone else's) "willies."
2. Originalism and textualism are not "a kind of textual idolatry akin to Martin Luther's sola scriptura approach to the Christian faith, [or] a fundamentalist hermeneutic akin to the Rev. Jerry Falwell's understanding of how to interpret the Bible."
Winters is woefully underinformed about originalism and textualism. The principal merit of his hyperlinked source for defining originalism--a poorly sourced aggregation of content I've never heard of before--is that it may have shown up high in search engine results. I cannot get back into that source without registering, but I can at least report that Wikipedia's entry on originalism is much better.
Wikipedia, too, has its limits, of course. And there are deep theoretical debates about originalism, including arguments about just how representative of originalism Justice Scalia's constitutional law corpus may be. But Winters's assertion that "Scalia's theory has not even a passing similarity with our Catholic intellectual traditions" is easily falsifiable. For readings on the relationship between the Catholic intellectual tradition and originalism, I recommend Lee Strang, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, and my co-authored piece with Jeff Pojanowski, Enduring Originalism. Even better for those on a tighter time budget is Pojanowski's 7-pager, Why Should Anyone Be An Originalist? (Short answer: Because it's a practically reasonable way of achieving the kind of benefits that the positive law of a written Constitution offers.)
Strang, Pojanowski, and I are admittedly just a few legal scholars trotting out teleological reasoning in theoretical arguments about originalism's jurisprudential foundations. But as far as I'm aware, nobody has taken issue with the claim Pojanowski and I have made that "[f]ar from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law’s moral purpose animated the framers’ understanding of our Constitution." The dispute, instead, is instead largely about whether that tradition "provides the most persuasive reason for continued adherence to that original law today."
And contrary to the impression conveyed by Winters (in which Scalia seized on originalism to combat "Blackmun's [sic] penumbras"), neither originalism nor textualism has a necessarily conservative or Catholic inflection. If any particular camp is ascendant in originalist legal theory today, it is probably the libertarians'.
There's much more I could say on these points. But better to save serious analysis for someone who first makes a serious effort to understand what he's trying to take on.
3. Winters's beef is much more with "the conservative Catholic legal establishment" than with Barrett herself.
When I studied for my Theology M.A. at Notre Dame two decades ago, most of my classes were in the Theology Department. But I also participated some in the intellectual life of the law school and took John Finnis's class on Aquinas there.
It was hard back then not to miss two big divides.
One was in the theology department itself, with respect to American Catholicism. Roughly speaking, this was a divide typified by Michael Baxter on the one hand and Richard McBrien on the other.
A second divide was between moral theologians in the theology department and people involved with the legal aspects of some of these issues in the law school. The divide was not neat, for I learned a lot about the intersection of morality and politics not only from Finnis but also, and more so with respect to American constitutional law specifically, from Cathy Kaveny (now at BC).
I mention these biographical notes because they shape the personal perspective I bring to Winters's post, which includes an awareness of the various fissures and tensions among Catholic intellectuals addressing the role of Catholics in American public life.
When understood as the latest volley in an ongoing intra-Catholic skirmish, one can understand why such skirmishing is so regrettable. Barrett is made to bear the brunt of attacks that ought to be aimed elsewhere.
And some of it is downright offensive. Consider, for instance, Winters's discussion of how Barrett "is a product of, and has been groomed by, the conservative Catholic legal establishment." Sure. When she hit it out of the park academically as a law student at Notre Dame, that was just her being groomed. Her impressive scholarship? Grooming also.
"Having been groomed" by the "conservative Catholic legal establishment," Winters writes, Barrett is "now the face of that establishment." It's too bad that's the way Winters sees it and wants others to see it.
Too bad is how I see it, anyway. And I bet I'm not far removed in this regard from the Catholic outlook that informs Persons and Masks of the Law.
Shouldn't we try instead to see Amy Coney Barrett's as the face of a real person with a history, intellect, and will of her own?