Wednesday, September 13, 2017
Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:
In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.
Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.
But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.
And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.
Saturday, August 19, 2017
In my Introduction to Law case, I assign Lon Fuller's wonderful "The Case of the Speluncean Explorers." I just realized that Judge Tatting's opinion contains the following paragraph in his case against purposivist statutory interpretation. Is it convincing? Victor Hugo probably would not think so.
But what are we to do with one of the landmarks of our jurisprudence, which again my brother passes over in silence? This is Commonwealth v. Valjean. Though the case is somewhat obscurely reported, it appears that the defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court refused to accept this defense. If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man? Again, if we look at the thing in terms of deterrence, is it likely that a man will starve to death to avoid a jail sentence for the theft of a loaf of bread? My brother's demonstrations would compel us to overrule Commonwealth v. Valjean, and many other precedents that have been built on that case.
"Drive Like Your Kids Live Here." It's just fantastic. I like to think of it as emphasizing the word "Your." I suppose the assumption, born from hard experience I am sure, is that people drive recklessly in neighborhoods with homes in which children live. What could possibly impress upon these reckless drivers to drive a little slower, a little more carefully?
I've got it. Try to get these people to think about how they would drive if their own children's lives were at risk. After all, people only really care about the safety and well being of their own children. What difference does it make if I put my neighbor's children at risk? I don't care at all about them--certainly not enough to drive safely and responsibly. But my kids. That's different. I actually would be sorry if something happened to them and I was at fault.
What a hopeful portent of the strength of American community.
Sunday, August 6, 2017
A wonderful set of observations from Victor Hugo on the importance of places and spaces of affection in the memory of one's homeland (Les Miserables, Cosette, Book V, Chapter 1):
The author of this book, who regrets the necessity of mentioning himself, has been absent from Paris for many years. Paris has been transformed since he quitted it. A new city has arisen, which is, after a fashion, unknown to him. There is no need for him to say that he loves Paris: Paris is his mind’s natal city. In consequence of demolitions and reconstructions, the Paris of his youth, that Paris which he bore away religiously in his memory, is now a Paris of days gone by. He must be permitted to speak of that Paris as though it still existed. It is possible that when the author conducts his readers to a spot and says, ‘In such a street there stands such and such a house,’ neither street nor house will any longer exist in that locality. Readers may verify the facts if they care to take the trouble. For his own part, he is unacquainted with the new Paris, and he writes with the old Paris before his eyes in an illusion which is precious to him.
It is a delight to him to dream that there still lingers behind him something of that which he beheld when he was in his own country, and that all has not vanished. So long as you go and come in your native land, you imagine that those streets are a matter of indifference to you; that those windows, those roofs, and those doors are nothing to you; that those walls are strangers to you; that those trees are merely the first encountered haphazard; that those houses, which you do not enter, are useless to you; that the pavements which you tread are merely stones. Later on, when you are no longer there, you perceive that the streets are dear to you; that you miss those roofs, those doors; and that those walls are necessary to you, those trees are well beloved by you; that you entered those houses which you never entered, every day, and that you have left a part of your heart, of your blood, of your soul, in those pavements. All those places which you no longer behold, which you may never behold again, perchance, and whose memory you have cherished, take on a melancholy charm, recur to your mind with the melancholy of an apparition, make the holy land visible to you, and are, so to speak, the very form of France, and you love them; and you call them up as they are, as they were, and you persist in this, and you will submit to no change: for you are attached to the figure of your fatherland as to the face of your mother.
May we, then, be permitted to speak of the past in the present? That said, we beg the reader to take note of it, and we continue.
Friday, July 14, 2017
Today is Bastille Day, and it would not be right to let it go unhonored here at Mirror of Justice. Here is my contribution:
something from that titan of France now well ensconced in the Pantheon, Victor Hugo. If you do not know Les Miserables (the novel, of course, not the musical), you must give it a try. It's a rare and true pleasure to read.
It may perhaps come as a surprise that the first book of Les Miserables, "A Just Man," is almost entirely devoted to describing a bishop--Bishop Bienvenu Myriel. It may be even more surprising that this portrait, by that grand homme de la patrie, is not merely flattering but reverential. Yes, Hugo saves many sharp elbows for the clerisy. Yes, he has a rather pantheistic conception of Christianity. But it seems churlish today to dwell on these matters. And it should not go unnoticed that this masterpiece of the French Revolution and post-Revolutionary France leads its charge in praise of a cleric--a good and just man. It is, in its way, a deeply religious novel.
Here is something toward the end of the Book 1, Chapter 14 ("What He Thought"). Happy Bastille Day.
Human meditation has no limits. At its own risk and peril, it analyzes and digs deep into its own bedazzlement. One might almost say, that by a sort of splendid reaction, it dazzles nature; the mysterious world which surrounds us renders back what it has received; it is probable that the contemplators are contemplated. However that may be, there are on earth men who—are they men?—perceive distinctly at the verge of the horizons of reverie the heights of the absolute, and who have the terrible vision of the infinite mountain. Monseigneur Bienvenu was not one of these men; Monseigneur Welcome was not a genius. He would have feared those sublimities whence some very great men even, like Swedenborg and Pascal, have slipped into insanity. Certainly, these powerful reveries have their moral utility, and by these arduous paths one approaches to ideal perfection. As for him, he took the path which shortens,—the Gospel’s.
He did not attempt to impart to his chasuble the folds of Elijah’s mantle; he projected no ray of future upon the dark groundswell of events; he did not see to condense in flame the light of things; he had nothing of the prophet and nothing of the magician about him. This humble soul loved, and that was all.
That he carried prayer to the pitch of a superhuman aspiration is probable: but one can no more pray too much than one can love too much; and if it is a heresy to pray beyond the texts, Saint Theresa and Saint Jerome would be heretics.
He inclined towards all that groans and all that expiates. The universe appeared to him like an immense malady; everywhere he felt fever, everywhere he heard the sound of suffering, and, without seeking to solve the enigma, he strove to dress the wound. The terrible spectacle of created things developed tenderness in him; he was occupied only in finding for himself, and in inspiring others with the best way to compassionate and relieve. That which exists was for this good and rare priest a permanent subject of sadness which sought consolation.
There are men who toil at extracting gold; he toiled at the extraction of pity. Universal misery was his mine. The sadness which reigned everywhere was but an excuse for unfailing kindness. Love each other; he declared this to be complete, desired nothing further, and that was the whole of his doctrine. One day, that man who believed himself to be a “philosopher,” the senator who has already been alluded to, said to the Bishop: “Just survey the spectacle of the world: all war against all; the strongest has the most wit. Your love each other is nonsense.”—“Well,” replied Monseigneur Bienvenu, without contesting the point, “if it is nonsense, the soul should shut itself up in it, as the pearl in the oyster.” Thus he shut himself up, he lived there, he was absolutely satisfied with it, leaving on one side the prodigious questions which attract and terrify, the fathomless perspectives of abstraction, the precipices of metaphysics—all those profundities which converge, for the apostle in God, for the atheist in nothingness; destiny, good and evil, the way of being against being, the conscience of man, the thoughtful somnambulism of the animal, the transformation in death, the recapitulation of existences which the tomb contains, the incomprehensible grafting of successive loves on the persistent I, the essence, the substance, the Nile, and the Ens, the soul, nature, liberty, necessity; perpendicular problems, sinister obscurities, where lean the gigantic archangels of the human mind; formidable abysses, which Lucretius, Manou, Saint Paul, Dante, contemplate with eyes flashing lightning, which seems by its steady gaze on the infinite to cause stars to blaze forth there.
Monseigneur Bienvenu was simply a man who took note of the exterior of mysterious questions without scrutinizing them, and without troubling his own mind with them, and who cherished in his own soul a grave respect for darkness.
Tuesday, July 11, 2017
Just a couple of items to flag for readers.
First, have a read of Paul Horwitz's well crafted review of John Inazu's book, Confident Pluralism. I was particularly interested to see Paul's steps toward a defense of the positive virtue of pluralism (as opposed simply to its observation as a social fact to be managed). This is, at least for me, a difficult step to take with respect to pluralism: in my own work, I incline much more toward the "fact of pluralism" side of things. But Paul and, of course, John, are making the case with their usual panache.
Second, my colleague Mark Movsesian and I have recorded a podcast wrapping up 3 major law and religion cases either decided by the Supreme Court or on for decision next fall. Hope you have a listen.
Monday, June 26, 2017
Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.
For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature.
But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.
Tuesday, June 6, 2017
Of course Rob is right just below to put serious questions to the view that we are resolutely not to judge when it comes to professional and other cultural values, and not to "impose" "our" values on law students as we acculturate them into the legal profession.
He is right because law is all about values and their imposition on others. Law may not be command pure and simple, but much of it is command. And even the part that is not command presupposes and incorporates moral views and dispositions at every level, to include evaluations of the proper scope of moral disagreement within the profession and the culture at large. If you are not interested in good (i.e., moral) governance, law is not for you. There is no line between the values that a law instantiates that are "moral" and those that are not. They are all moral.
The trouble is that anti-legal moralism dies very hard, dating all the way in our own tradition from the fight between Stephen and Mill and right on through to the present, a fight that the legal moralists have been widely proclaimed to have lost. Many students, in particular, have been raised on a soft and not well thought-through moral libertarianism that forces and reinforces all kinds of morality onto and into students--but does so sub silentio with the pretense of not being a morality at all. That ostensible moral libertarianism in law--itself a legal moralism--infuses much of the law, including, very much, the doctrines of the First Amendment (but many others too), and much of the instruction in law school. It's time we stopped talking about moral neutrality--in law and in law school--and started talking about the way the law, and the way that law schools, do, and should (two different sets of discussion), privilege certain moral positions and downgrade others.
But that will require a good deal more than forcing clinic and other offerings--most of which do, in fact, reflect very specific ideological commitments and which are, as John McGinnis has put it, "enterprises of political action"--down the throats of students pro bono publico. It will require, first, turning a highly critical eye on the existing frameworks, and, second, forging a shared sense of pro bono publico from the fragments one can see adumbrated in the disagreement between Rob and his interlocutor.
Thursday, May 18, 2017
Apropos our upcoming Anglo-Russo comparative tradition and traditionalism conference, it seems Time Magazine has a late developing interest as well.
But I'm afraid the conference is closed to the media.
Tuesday, May 16, 2017
Rod Dreher's recent book, The Benedict Option, is an interesting meditation on the future for Christians in what he describes as a post-Christian culture and society. In this extended, candid, and far-ranging interview, my colleague, Mark Movsesian, discusses the book's claims with Rod and much else that may interest MOJ readers. A bit:
Movsesian: I wonder if we could talk about tradition, which runs like a red thread through your book. You argue that it’s necessary for Christians to return to tradition in order to resist “liquid modernity,” which denies the value of all attachments and identities except those individuals freely choose for themselves. In liquid modernity, the only thing that has meaning is momentary individual choice. This is quite destabilizing for individuals and for society; that’s where tradition can be helpful.
As co-director of the Tradition Project, I have sympathy for your view! But I think there’s a paradox about tradition in a pluralist society like ours. In such a society, tradition is itself a matter of individual choice; there’s no avoiding it. Tradition is just one available option among many for an individual to choose; in the end, each of us is free to choose tradition or to reject it; to choose it and then reject it; or to choose some aspects of it and not others. This is true even of people brought up in a tradition—like the kids attending classical Christian schools today. What do you make of this paradox?
Dreher: There’s no escaping it. I am quite aware of the near-absurdity of my own personal case: a 50-year-old man raised a nominal Methodist, a convert to Catholicism in my mid-20s, converting to Orthodox Christianity at 39, and having moved around the country a great deal for my career, writing a book in praise of tradition. Yet … what else is there? Charles Taylor says that we all live in a secular age, which he defines as the awareness of the possibility that we don’t have to live the way that we do. We cannot escape choice.
This is why our St. Benedict, if we are to have one, must be new and very different, as MacIntyre said. The first Benedict emerged in a West that was still new to Christianity. Now we have been through the Christian era, and can’t un-see what we have seen. And the consciousness of an ordinary person living in the 21st century can hardly be compared to the way a 6th century layman saw the world conceptually and imaginatively. This point hardly needs elaboration, but it conditions any approach to tradition we make today.
To bring this discussion down to earth, I think a lot these days about my late father and sister, who were in most respects traditionalists without knowing what they were doing. That is, they assumed that the rural way of life they had in south Louisiana was going to continue forever. They were quite intelligent, but they strongly rejected as alien anything that challenged their way of seeing the world. That meant rejecting me, and the things that I loved and stood for, though I didn’t realize how thorough this rejection was until I returned to south Louisiana after my sister’s 2011 death. My dad died in 2015. The family has not held together, for various reasons – and this was something I never expected. I deeply admired the unselfconscious traditionalism that my dad and sister represented. They didn’t theorize this stuff; they lived it. But I can see in retrospect that they believed that force of their iron wills was sufficient to ward off all threats to the things they valued most, especially family and place. It was a tragic mistake. Their rigidity, by which I mean their unwillingness to adapt and to change certain things that needed to be changed for the sake of holding on to the things that really mattered the most – that was the fundamental flaw that doomed the entire thing. They thought that stoically preserving their fortress-like outer walls would keep the interior safe. They were wrong.
It’s heartbreaking and tragic in the fullest sense of the word, and a very Southern tragedy too. But I try to learn from what happened. I suspect I’ll spend the rest of my life trying to learn from what happened. Right now, I think the most basic lesson is the need for discernment in our approach to tradition. There is no substitute for it. We have to know what we have to change so we can conserve what is essential. This is hard.
On the more optimistic side, though, I believe that we are starting to see more and more people realizing that the future is not determined. Yes, I think we have to be aware of all that is against us in post-Christian modernity, but we also have to be aware that God can surprise us – and we can surprise ourselves. I mean, look, Napoleon closed the monastery in Norcia, St. Benedict’s hometown, after at least eight centuries of constant presence there. For nearly 200 years, there were no monks. And then, at the turn of the millennium, a handful of American Benedictines who wanted to live in the old Benedictine way re-opened it. Now they have a thriving community of 16 monks. The average age is 33. Who could have expected that?
In The Benedict Option, I quote one of those monks, Father Martin Bernhard, who left the Texas Hill Country to follow his calling to Norcia. When I visited him there in early 2016, I told him that they are a sign of contradiction to the modern world. He smiled, and said that anybody could do something out of the ordinary if they are willing “to pick up what we have lost and to make it real again.”
The monk told me, “People say, ‘Oh, you’re just trying to turn back the clock.’ That makes no sense. If you’re doing something right now, it means you’re doing it right now. It’s new, and it’s alive! And that’s a very powerful thing.”
God knows it will not be easy to revive traditional Christian life and practices. But again: what else is there?