March 07, 2014
What Is the Disposition of the Good Judge?
Tom's post below raises some important issues, but as Kevin says, our paper does not answer in a complete way the question of what constitutes the ideal disposition of the judge. What it does is to direct some attention to the question itself and to reconceptualize the intellectual projects of judges who ostensibly are said to be writing (and at times themselves purport to be writing) about constitutional theory as adverbial projects--projects about the quality of good judging. One might believe that in order to think well about judging, one needs to think first about the qualities, habits of mind, and dispositions of the good judge. But one of the themes of our paper is that interpretive constitutional theory has come so much to dominate scholarly inquiry in constitutional law that it is difficult even to understand other sorts of constitutional projects for what they are.
One of the reasons for this blind spot is methodological. You cannot tell very much at all about the habits of mind of the good judge by asking that judge to reduce to a writing his theory of constitutional interpretation. You won't get the information you are looking for (though you will get the chance to score some easy points and look clever by punching holes in his theory). Instead, you need to examine whom the judge admires, and why, and which "school" the judge aspires to join and be thought within, and which other judges are dispositional compatriots--all projects within the domain of intellectual history. But you also have to compare what the judge does in constitutional adjudication against what he says he does extrajudicially. That is, you need to be a good and careful doctrinalist, not in order to trap anybody but so that you can see the many ways in which constitutional law in practice complicates constitutional theory.
An additional advantage of making the move from theory to disposition is that it permits the scholar to criticize judicial pragmatism and restraint on their own terms--as dispositions rather than as theories of constitutional interpretation--and therefore to engage more directly and more truly with the sorts of projects in constitutional law that interest judges. Part III of our paper does just that. In its final section, we look to the example of Judge Henry Friendly, who was neither a pragmatic judge (here we respectfully disagree with Judge Posner) nor a restrained judge. Indeed, Judge Friendly always resisted such labels and never was particularly interested in what was then the dernier cri of Dworkinian moralism. But what, exactly, did Friendly stand for? The model of lawyerly craft and argument that he represented does little to enrich legal theory, and this has led some academic commenters to wonder whether Friendly will be forgotten by future generations. Perhaps so. But that may say more about the peculiar reputational preoccupations of the legal academy than about the much more interesting question of what dispositions make for a good judge. Lots of work remains to be done in thinking through that question.
March 05, 2014
The actual but limited importance of judicial dispositions
Tom's comparison of judicial pragmatism and judicial restraint with Niehbuhrian Christian realism shows how it can help to understand each of these as appropriate dispositions when engaging in various forms of practical reasoning. Tom contends that Niebuhrian realism disposes religious and political activists "to combine vigorous advocacy with deep humility." He observes that good dispositions are virtues, and that such virtues "may be more powerful and determinative than the precise logic of analysis." And he concludes by asking about the value of judicial pragmatism and judicial restraint as providing an appropriate disposition toward the activity of judging.
Tom's comments and question helpfully bring to the surface an issue that Marc and I do not resolve in the paper. We speak of Posner and Wilkinson as advocating for particular judicial dispositions as features of judicial excellence. This terminology leads toward understanding the qualities of good judging in virtue-based terms. But we do not explicitly endorse a virtue-based account as against some other type of account. At other times in the paper, we speak in terms of judicial office or judicial role or judicial duty. We do this less to contrast a virtue approach with a deontological approach than to capture an aspect of judging that both pragmatism and restraint rub up against in various ways--the obligation of law. If the law requires something, the judge should neither be pragmatic nor restrained to the exclusion of the requirements of the law. Neither Posner nor Wilkinson claims otherwise. But too strong an emphasis on sensibility or disposition tends in that direction. One can see this in various ways in the cases that we describe in the second part of our paper.
While an emphasis on appropriate judicial dispositions toward constitutional adjudication stands in some tension with an emphasis on the right way to figure out what the law requires, it is nonetheless helpful to recognize the two as distinct. This enables analysts to discuss the contribution and the limits of each type of guide for judges. And when figuring out the right dispositions for judges in constitutional adjudication, it matters that the particular form of practical reasoning at issue is judicial legal reasoning. Appropriate dispositions toward the kind of practical reasoning engaged in by political and religious activists are not the same as appropriate dispositions toward judicial legal reasoning in constitutional cases.
March 04, 2014
What Happened to Justice Frankfurter?
The received wisdom is that, nowithstanding his enormous intellect and brilliance, Justice Frankfurter's overbearing personality in combination with his 'on-the-wrong-side-of-history' position in Minersville v. Gobitis was enough to do him in as an influential voice on the Supreme Court. Gobitis does seem universally reviled; Professor Sherry in this article lists it alongside Plessy v. Ferguson, Buck v. Bell, and some others as among the wrongest of the wrong. Justice Frankfurter has long been associated with judicial restraint in constitutional adjudication, and Gobitis certainly could be classified as a judicially restrained decision. Indeed, it could be taken to support Professor Sherry's thesis--that what we need is more judicial "activitism" and less judicial restraint.
In our article, Kevin and I note how common it is for both Judge Posner and Judge Wilkinson to discuss judicial greatness in constitutional adjudication not by reference to constitutional theory, but instead by considering personalities, styles of thought, dispositions, and character traits. When they talk about judicial excellence, these judges are wont to engage in intellectual portraiture more than abstract theorizing. And we observe that Judge Wilkinson often lists Justice Frankfurter as one of his most admired examples of the "school" (Wilkinson's term--evoking a community of practitioners, such as a school of artists) of judicial restraint--one which Wilkinson claims as his own.
How, then, to explain Justice Frankfurter's widely perceived fall from grace? "The tragedy of Mr. Justice Frankfurter," the historian Melvin Urofsky has written, was that he became "prisoner to an idea--judicial restraint." But if we are right, the tragedy was not Frankfurter's, but judicial restraint's. Frankfurter's error was not in pledging allegiance to an idea, but to the wrong idea. To use Wilkinsonian imagery, from the time of Thayer it was already plain to see that judicial restraint could not bear the cosmic burden laid on it in the face of the coming challenge of legal realism. Judicial restraint was a rearguard defensive action--an apologetic strategy--and its adaptation in the hands of each of its subsequent adherents (Frankfurter, Bickel, and so on) served to illustrate its weakness as a persuasive response to the problematics of twentieth century constitutional adjudication.
March 01, 2014
Movsesian on the Rise of the Nones
My colleague, Mark Movsesian, has a very interesting paper on the growing importance of the "Nones"--those who claim no religious affiliation at all but by and large are neither atheists nor agnostics. Rather, the Nones reject institutional religious belief. As Mark puts it, "A better term for them might be religious 'Independents,' or the familiar 'spiritual but not religious.'" The paper considers some of the legal ramifications of "none-ism," including the relationship between group status and legal protection. Here's the abstract.
The most important recent development in American religion is the dramatic increase in the number of people who claim no religious affiliation — the rise of the Nones. In this Working Paper, I discuss the social factors that explain the rise of the Nones--demography, politics, family, technology, a distrust of institutions generally--and explain what this development might mean for the definition of religion in American law. I focus on a recent federal appeals court case involving a self-styled spiritual adviser, “Psychic Sophie,” who claimed that following her “inner flow” constituted a religion meriting constitutional and statutory protection. I argue that the case is a close one. Protecting Nones as a religion would promote the important goals of state religious neutrality and personal autonomy. On the other hand, religion has always been understood in terms of community. Indeed, as Tocqueville saw, it is precisely religion’s communal aspect that makes it so important to liberal democracy. Granting Nones the status of a religion would fail to capture this important social benefit.
February 24, 2014
"Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory"
For the last couple of years, Kevin Walsh and I have been working on an article about judicial critique of constitutional theory and the separation between constitutional theory and constitutional adjudication. Our new piece is called Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory, and we hope to have some further discussion about it in the coming days and weeks. Here is the abstract:
Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?
This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.
February 15, 2014
Reflections in the Mirror
I have been a contributor to Mirror of Justice for roughly half of the span of its life, having joined in 2010. My career as a law professor is roughly the same age: I started at my beloved St. John's Law School in 2009. Blogging here has always been an important and integral part of how I conceive part of my writing duties. I like to write, but not because I believe that what I write is particularly important, insightful, or impactful (it isn't). I simply enjoy the process of working out and putting down my thoughts, and think my life would be much the poorer if I were not blessed with the good fortune of doing so.
MOJ has given me a wonderful additional writing outlet. But it has also changed my perspective about writing as a duty. It has impressed upon me the value of speaking to a broader audience, again not for reasons of my "influence" (paltry would be a generous description) but because it is enriching to hear from and speak with more people rather than fewer. And, on a more personal note, it has helped me to recognize that writing is, for me, a vocation. I would not feel right with the world if I could not write. Since I began in November of 2010, I have written about 500 posts, some mercifully short and some (looking back on them now) unendurably long. Why would anybody do this? Nobody will read them again--not even me. I have to conclude that I write them for the same reason I write anything else--from something of a sense of compulsion or reflex necessity or calling. Perhaps from a sense of obligation, too, or in order to get certain ideas out into general circulation. But MOJ has helped me to understand that my internal reasons for writing are much more important than any external reasons, or reasons that are motivated by consequences.
Enough navel-gazing, and onto a final broader point about this blog and my gratitude toward it. "Intellectual diversity" in the legal academy has received some attention lately. Generally the phrase is taken to mean something approaching ideological diversity--not exactly a rough equivalence of thinkers "on the right" and "on the left," but something of that sort.
But for me, intellectual diversity is not so much ideological diversity as it is the diversity of intellectual cultivation, style, interest, and expression. The joy of Mirror of Justice, for me, is to be a participant in the collection of contributions all nestled within the capacious and yet tailored overcoat of Catholic thought--a true wealth of stylstic and intellectual perspective. It is Tom Berg's consistently penetrating and thoughtful commentary--a perennial and particular source of sustenance and provocation for me. It is Michael Moreland's formidable theological erudition in bringing to light an insight of Karl Barth or Robert Bellarmine. It is Lisa Schiltz's always moving reflections about human frailty and disability. It is Michael Perry speaking grandly in the religious register of international human rights. It is John Breen and Richard Myers, both of whom distinguish themselves with passionate and powerful comments about human life. It is Robert Hockett with his critical and discerning remarks about economic justice. And Russell Powell's informed and expert remarks on Islamic jurisprudence. It is Kevin Walsh's keen, precise, and far-sighted doctrinal and historical illuminations. Michael Scaperlanda with his sage ruminations about immigration and human anthopology. It is Rob Vischer's equanimous, tempered, and subtle interventions on the nuances of conscience. It is Patrick Brennan's brilliantly laser-like, intense focus on a point of natural law. It is Susan Stabile's spiritually and mystically rich interlocutions. It is Robby George with his profound philosophical acumen and his sharp eye for, as he has put it elsehwere, the "moral ecology" of a society. It is Fr. Araujo with his wide-ranging cosmological insights worthy of Tapparelli. It is Greg Sisk detailing a new and enlightening empirical insight. It is Mary Leary from her deeply morally righteous perspective as the protector and champion of abused children. It is Cecelia Klingele (welcome!) drawing from similar perspectival reservoirs when speaking about prisoners. And it is Rick Garnett, with his consistently generous, sensible, clear-eyed, and good-souled disposition. Each member, posting missives composed in a unique and distinctive style, together composing a society of Catholic legal scholars.
It has been a pleasure and privilege to be part of this republic of Catholic legal letters.
February 08, 2014
St. Paul's Punishment Theory, Part I
Did St. Paul have a theory of punishment? In The Mighty and the Almighty, Professor Nicholas Wolterstorff argues that he did. In this post, I'll lay out Prof. Wolterstorff's claims. In the next, I'll consider them and ask some questions about his interpretation and also about the merits of the punishment theory he ascribes to Paul.
Here's the context. In Chapter 8 of the book, Wolterstorff has in mind only one of the two dualities of authority that make up his core thesis--the issue of state authority mediating divine authority. In discussing that issue, he explores the extremely difficult and dense Epistle of Paul to the Romans, and specifically Romans 12 and 13. Here Paul is giving some advice to members of the Church about how they should behave toward and within the various institutions that formed civil society: the family, business relationships, and the Roman empire, for example. In Chapter 12, Paul instructs Church members never to "avenge" themselves, but to "leave room for the wrath of God; for it is written, 'Vengeance is mine, I will repay, says the Lord.'" Here is the text of the first seven verses of Chapter 13:
1. Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.
2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.
3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:
4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.
5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.
6 For for this cause pay ye tribute also: for they are God's ministers, attending continually upon this very thing.
7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.
Wolterstorff says that one standard interpretation of these two Chapters is that 12 contains instructions as to individual conduct, while 13 describes official state action. On that interpretation, the individual is not to "avenge" himself against wrongdoing, but the state may "avenge" that same wrongdoing. Wolterstorff equates "vengeance" with retribution, and so possibly with retributivist reasons for punishment. "The core idea of retribution," he writes, "is paying back evil with evil, redressing the harm done to the victim with an equivalent harm done to the wrongdoer." And in rejecting the standard interpretation of Romans 12 and 13, Wolterstorff claims that retributivism understood in this fashion is completely at odds with Jesus's rejection of this sort of code of reciprocity, a rejection that Paul (at earlier points in Chapter 12 of the Epistle) repeats. From this, Wolterstorff ascribes to Jesus, and so also to Paul, a consequentialist understanding of punishment: "If hard treatment is to be imposed on the wrongdoer, let it be for the sake of achieving some good in his life and/or the lives of others."
But there is a problem with this interpretation. For in Chapter 13, verse 4 of the Epistle, Paul speaks of the government "execut[ing] wrath upon him that doeth evil." How does a minister of justice, who is himself also a minister of God in the Christian understanding advanced by Wolterstorff, execute wrath (God's wrath?) upon the wicked without imposing punishment for retributivist reasons?
Wolterstorff offers the following solution. What this passage means is that the state is empowered to reprove and punish the evil-doer in the way that a parent reproves and punishes his or her children. Government, as the servant of God, has a "God-assigned task": its function is not retribution but the expression of wrath in response to evil-doing, and the concomitant expression of support for the doing of good. Here is Wolterstorff:
As to what God authorizes the state to do, I am reminded of a way of understanding punishment that has recently entered the lists and that I find compelling, the so-called expressive theory....The expressive theory says that punishment of a wrongdoer should not be understood as retribution--redressing harm with harm--but as a way of reproving what he did and of expressing anger at him for having done it. Speaking anachronistically, Paul was employing the expressive theory of punishment rather than the retributive theory in stating what God assigns government to do. (88-89)
Yet Wolterstorff does not believe that Paul is urging the state to express God's wrath; precisely whose wrath the state is empowered to express is left unclear. In fact, in light of the "social benefits that Paul cites of government carrying out its assignment," it seems that the expression of (somebody's) wrath is only one sort of consequentialist justification for state-imposed punishment. Wolterstorff interprets Paul as advocating a more broadly liberal, consequentialist theory of punishment, to include deterring wrongful conduct: "The God-assigned task of government is to exercise governance over the public for the curbing of wrongdoing." (90)
These are the broad outlines of Wolterstorff's interpretation of St. Paul's theory of punishment. In my next post, I will raise some questions both about the interpretation and about expressivist theories more broadly.
February 06, 2014
"The Strongest Single Argument" is the Narrowest Argument Needed to Win, not the Broadest
Lots of action from the New York Times in the past couple of days. Kevin and Rick have already described Linda Greenhouse's column about the Hobby Lobby and Little Sisters of the Poor cases and her comments about McCullen v. Coakley. The column says what it says, but at least it contains reasons that one can evaluate and then accept or reject.
This editorial, on the other hand, doesn't even give the reader that. The Times finds meritorious Marci Hamilton's argument that the Court should strike down the Religious Freedom Restoration Act as a violation of the Establishment Clause. Though it does not predict that "the Court will go that far," it does seem to believe that the Court ought to. And it further seems to think that the amicus brief authored by Fred Gedicks arguing that the Establishment Clause forbids any accommodation that imposes "signficant burdens" on identifiable third parties makes plausible claims. Even more than that, however, it asserts that these Establishment Clause claims are "the strongest single argument" against the plaintiffs in these cases.
Now, I think the argument is mistaken, and have given reasons in places that the Times neither cites nor acknowledges. But even if I agreed with the argument, I would not believe that it represents "the strongest single argument" against the plaintiffs. That honor quite obviously goes to the government's evaluation of the RFRA claim itself. And the government has devoted nearly all of its briefing to developing that argument--an argument that depends on interest balancing under RFRA, not on a creative, aggressive, maximalist approach to constitutional interpretation. "The strongest single argument" from the government's side is the narrowest argument it needs to win, not the broadest. It is the argument that RFRA does not require these accommodations. That argument may not win, or it may, but it should come as no surprise that the actual litigants are focusing on it.
January 22, 2014
Wolterstorff's "The Mighty and the Almighty": The Dual Authorities Thesis
This is the second in a series of posts on Professor Nicholas Wolterstorff's book, The Mighty and the Almighty: An Essay in Political Theology. In the first post, I described what might be meant, and what Wolterstorff means, by "political theology," and Wolterstorff's project to arrive at a distinctly Christian political theology. Here I want to lay out the core thesis of that political theology.
That thesis can be summed up in the phrase, "dual authorities." Christians, Wolterstorff writes, are subject to the dual authority of Christ and the civil power. And these dual authorities mediate one another.
These are deep waters and Wolterstorff explains and helps the reader by considering an ancient example--that of Polycarp, Bishop of Smyrna, who was martyred in 156 A.D. Polycarp is sought out, arrested, and haled into a stadium filled with people where he is urged by the Roman proconsul to renounce Christ and swear by the genius of Caesar in order to save himself from execution. Polycarp refuses in these words: "For eighty and six years have I been his servant, and he has done me no wrong; how can I blaspheme my King, who has saved me?" Later in the exchange, Polycarp tells the proconsul: "[W]e [Christians] have been taught to render honour, as is meet, if it hurts us not, to princes and authorities appointed by God."
Wolterstorff's thesis depends on a close reading and interpretation of these statements. Unlike those who resist government's coercive power as having no authority at all over them, "Polycarp's resistance was different":
He did not declare that obeying his own interior conscience had higher priority for him than obeying the proconsul. He did not declare that loyalty to his group had higher priority for him than whatever loyalty he might feel toward Caesar, the proconsul, and the people in the stadium....[T]he explicit ground of his resistance was heteronomous. He had a sovereign distinct from Caesar, namely, Christ. The proconsul was demanding that he renounce that sovereign. That he would not do, for his sovereign had saved him. (13)
But Polycarp is not implying that the civil power is not his sovereign, or that Christ is his sovereign instead of the civil power. "No," says Wolterstorff, "he was a citizen of Smyrna; and the proconsul had political jurisdiction over Smyrna. Polycarp was under dual authority. In his person, the authority of Christ and the authority of the emperor intersected. Given the command of Caesar's proconsul to renounce Christ, these two authorities had now collided." (14-15)
What makes the conflict even more complex and more difficult is the existence of other conflicting dualities beneath the surface. For one, Polycarp believed that the princes of the civil authority are appointed by God; yet now those self-same civil authorities demanded that he renounce God (that is, Christ). And for another, there was an institutional conflict at work: Polycarp was a bishop of the church, exercising Christ's authority over the church. His exchange with the proconsul was not merely a personal conflict but represented a collision of institutional authorities. He was one person with dual membership in two authority structures that intersected in him. The key to Wolterstorff's political theology is in understanding the nature of these dual authorities and the depth of their conflicts--dualities which affect everyone (political authority mediating divine authority and yet also being limited and judged by divine authority) and Christians in particular (being citizens of some state and under its authority, while that state is always under God's authority; being members of the church and under the authority of Christ, who in turn is divine).
Finally, it is interesting to read Wolterstorff's comments about the alien quality of all of this to American sensibilities, in which the language of religious liberty has the effect of effacing the problem of dual authority:
Some will find it strange to think of the church in terms of authority. They think of the church as a voluntary organization devoted to sponsoring religious activities. A group of us find ourselves interested in religion, in particular the Christian religion; so we get together and set up an organization for holding worship services and for engaging in a bit of social action. We put in place some organizational structure, call a minister, place ads in the local press, welcome neighbors. We are off and running.
Everything about religion in America conspires to make one think of the church along these lines. Christ as king and the church as an authority structure are nowhere in view. The local government may decide to clamp down on our group for one reason or another--it doesn't like the architectural plans, doesn't like the fact that wine is served to minors, doesn't like the traffic jams. We may resist. But if we do, our resistance will be in the name of religious freedom. We will not declare that Christ is our king and that loyalty to our king requires that we not concede to the government's demands. No Polycarps among us. (16-17)
January 20, 2014
St. John's & Villanova Joint Colloquium in Law and Religion: Speakers and Topics
This semester, the Center for Law and Religion at St. John’s Law School and Villanova Law School are teaming up to host the Joint Colloquium in Law and Religion. The course invites leading law and religion scholars to make presentations to an audience of students, faculty, and other interested members of the community. The schools will be connected in real time by video link so that students and faculty at both schools can participate in a virtual classroom experience.
My colleague, Mark Movsesian, and I are delighted to be hosting the seminar with Michael Moreland. I have listed the presenters, dates, and most of the paper topics below. Please write me a note if you wish to attend.
January 27, 2014 (at St. John’s)
Michael Walzer, Institute for Advanced Study
The Ethics of Warfare in the Jewish Tradition
February 10, 2014 (at Villanova)
Sarah Barringer Gordon, University of Pennsylvania Law School
The African Supplement: Religion, Race, and Corporate Law in the Early Republic
February 24, 2014 (at St. John’s)
Kent Greenawalt, Columbia Law School
Original Understanding: What is Relevant and How Much Does It Matter?
March 17, 2014 (at St. John’s)
Donald L. Drakeman, Cambridge University
Which Original Meaning of the Establishment Clause is the Right One?
March 31, 2014 (at St. John’s)
Kristine Kalanges, Notre Dame Law School
Transcendence and the Just Order
April 14, 2014 (at Villanova)
Steven D. Smith, University of San Diego Law School