Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, August 3, 2018

Mark Helprin on Gov. Cuomo at ND and the "Guillotine of Sophistry"

This is a hard-hitting but, I think, devastatingly on-point evaluation of the "personally opposed but . . ." approach to abortion-regulation that Gov. Cuomo proposed in his 1980s Notre Dame speech and that so many others have adopted since.  A taste:


[L]ike Mario Cuomo[,] . . . they claim to be “personally” against abortion, but would leave it up to “a woman and her doctor.” This assumes the division of oneself into personhood, and what else? Granted, one would not want to force into law one’s personal preference or distaste for or against, let’s say, chipotle peppers or disco music, but to treat abortion as a matter of inexplicable, anachronistic religious doctrine; arbitrary preference; or capricious taste is to demonstrate conceptual blindness or bottomless moral cowardice.

If an unborn child were not, as in fact it is slightly more than half the time, of a different sex than the mother; if it did not have a completely different and unique DNA; if it were not viable from the start and would not survive to term and then, statistically, for 80 years more thereafter given only the absence of an act of destruction; if abortion opponents were consistent in using the emotive, Anglo-Saxon word woman and not switching to the Latin fetus instead of baby or child; if the stupidity of the question “When does life begin?” was not affirmed by the fact that the sperm and the egg are alive before the question is unnecessarily formulated; if only one body, not two, gave rise to the conflict; if in common and statute law there were not long-standing strictures upon what we may do even with our own bodies; and if the destruction of one’s progeny were not contrary to every biological imperative, decent human impulse, and civilized principle, only then—and perhaps not even then—the question would not be, is this the taking of an innocent human life, or is it not?

August 3, 2018 in Garnett, Rick | Permalink

Monday, July 23, 2018

Pakaluk on "The Seton Option: Catholic Schools and Good Citizens"

I highly recommend this short piece, by Prof. Catherine Pakaluk, on (inter alia) Catholic schools, mediating institutions, Pius XI, and democratic citizenship.  (Among its virtues is its consonance with some papers of mine on the subject!  See, e.g., this and this.)  Check it out!  

July 23, 2018 in Garnett, Rick | Permalink

Vermeule on liberalism, post-liberalism, and hope

Some characteristically engaging thoughts from our own Adrian Vermeule ("According to Truth") have been posted at The Josias, here.  Here's just a bit:

Liberalism muffles the political in second-order concepts like “civility” and “tolerance” and “choice,” and the hunger for real politics rightly rebels against this. But it does not follow that these concepts have no value at all, when rightly placed within a larger ordering to good substantive ends. If civility, tolerance, and their ilk are bad masters, and tyrannous when made into idols, they may still be good servants. . . .

Check it out!

July 23, 2018 in Garnett, Rick | Permalink

Tuesday, July 17, 2018

A strong pro-life editorial on the Kavanaugh nomination from America

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.

July 17, 2018 in Garnett, Rick | Permalink

Wednesday, July 11, 2018

Nagy and Woodward on Keeping -- and Losing -- the Faith

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. . . .

July 11, 2018 in Garnett, Rick | Permalink

Monday, July 9, 2018

About those Planned Parenthood ads . . .

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.

July 9, 2018 in Garnett, Rick | Permalink | Comments (0)

Saturday, July 7, 2018

A Strange Defense of Sen. Feinstein et al.

Michael Sean Winters has re-upped his (partial) defense of the line of questioning to which (my friend and colleague) now-Judge Amy Barrett was subjected by several under-informed members of the Judiciary Committee last year.  Barrett is, of course, an intelligent and accomplished lawyer, scholar, and teacher but Winters apparently now sees her (for reasons that are not provided) as the "face" of the "conservative Catholic legal establishment", an "establishment" that is "responsible" for the "deformation of the Church's public witness."

I'll pass over Winters's criticisms of Justice Scalia and what he takes to be "originalism" and leave it to others, such as our own Kevin Walsh, to provide a clarifying response (or perhaps just a reading list!).  For now, just two things:  First, Winters is, I believe, attacking a straw man when he suggests that those of us who were critical of Sen. Feinstein etc. objected to questions either about the law-review article she co-authored (about the obligations of Catholic judges in capital cases) or about her commitment, more generally, to decide cases in accord with the relevant law (rather than religious commitments, or anything else).  As I (and others) have said before, such questions -- so long as they are not ignorant, so long as they are offered in good faith, and so long as they do not presume that Catholics are less able than anyone else to perform the judicial duty -- are fine.  But, again, these are not the questions that were asked.  The President of the University of Notre Dame, Fr. John Jenkins, had a better interpretation and evaluation of the business than the one Winters provides.

Next, Winters accuses me of an "intellectual sleight of hand" for writing this:  "The senators would not have asked — and the senators' defenders would not have tolerated — repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they)." Winters says:

The blog Mirror of Justice says it is dedicated to "the development of Catholic legal theory." Even if there were a Muslim or Sikh equivalent, there are not five Muslims on the Supreme Court and there are no Sikh-sponsored universities with laws schools as we Catholics proudly boast, so the comparison does not ring true.

I do not see the "sleight of hand" here and am not sure what relevance the fact that MOJ is dedicated to "the development of Catholic legal theory" has to the charge.  Nor is it clear why the fact that there were five Catholics, and no Muslims, on the Court somehow undermines the point that "repetitive and badgering questions" of the kind asked by Sen. Feinstein et al. are inappropriate - whether directed at Catholics, Muslims, Sikhs, or anyone else.

July 7, 2018 in Garnett, Rick | Permalink | Comments (0)

Thursday, July 5, 2018

Judge Amy Coney Barrett

Here's a short reflection I wrote regarding my friend and colleague, Judge Amy Coney Barrett, who is (apparently) being considered to replace Justice Anthony Kennedy.  The bottom line (as I see it):

Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.

July 5, 2018 in Garnett, Rick | Permalink

Sunday, July 1, 2018

Some thoughts on Justice Kennedy and his retirement

Alexander Hamilton predicted that the Supreme Court would be the weakest of the national government's three branches. Many would say that things have not turned out that way and would hold up Justice Kennedy's three decades on the Court as an example.

Justice Kennedy was Pres. Reagan's third nominee to replace Justice Lewis Powell, and the fact that Powell's replacement was Kennedy, rather than Robert Bork, would prove to be hugely consequential.
Over the years, Justice Kennedy appeared to "swing" or "switch" back and forth between the Court's more liberal and more conservative blocs, but he held, in fact, a fairly consistent judicial philosophy that prioritized free-speech rights and personal autonomy. Perhaps more than any other justice during his tenure, he believed it was the Court's role and obligation to supervise and second-guess political decisions and resolve social and cultural controversies. His conception of a broad and dramatic judicial role was most famously illustrated in his abortion and gay-rights decisions. In the Planned Parenthood v. Casey decision, he joined an opinion that not only asserted the Court's role as final arbiter but also called on citizens to end their disagreements about abortion policy. Obviously, this call has not been heeded, and Kennedy's critics will say it was presumptuous to issue it.
Other areas where Justice Kennedy's vote made significant differences include the debate over federalism and the national government's powers, religious liberty, church-state relations, affirmative action and voting, school choice, and limits on capital punishment. Both political "conservatives" and "liberals" can find much they welcome, and much they reject, in his 31-year record on the Court.
It seems likely, judging from the current administration's nominees so far, that Justice Kennedy's retirement and replacement change the Court's balance and case-law in some -- but by no means all -- areas. After all, the vast majority of the Court's rulings are not 5-4, ideologically divided cases. Instead, in most cases and for most of the year, the Court works on technical questions of statutory interpretation and operates by substantial consensus. It is, all things considered, unfortunate that the Court and its composition have come to matter so much with respect to disputed and divisive policy and moral questions that our Constitution is best understood as leaving to the political process. It would be a welcome result of the upcoming confirmation battle if both political parties in Congress take it as an occasion to recommit themselves to Hamilton's vision.      

July 1, 2018 in Garnett, Rick | Permalink | Comments (0)

Wednesday, June 27, 2018

Court invalidates agency-fees requirement for public employees

The Supreme Court's decision in Janus is here.  In my view, while the stare decisis concerns about overruling Abood (which I have always thought was, to quote Justice Aliton, "poorly reasoned"), this result is the correct one, in that Abood and mandatory agency-fees had become outliers in the Court's First Amendment doctrine and precedents.  There will, of course, be a flood of commentary focusing on the political /partisan implications of the ruling, but I don't believe that commentary should obscure what I regard as the basic point that a public employee should not be required, as a condition of public employment, to support financially (and therefore, under the Court's precedents, to associate with) partisan and political activities to which he or she objects.  

I'll also note -- as I have many (Ed.:  Too many, Rick) times on this blog, that it is (with all due respect to the USCCB) mistaken to claim that Rerum Novarum, or the Church's social teaching on work and workers' rights more generally, requires or even counsels support for legal requirements that public employees support the partisan activities of today's public-employee unions. Nor is it "libertarian," or "individualistic," or "Randian," etc., to conclude that a Supreme Court charged with enforcing the First Amendment should invalidate such requirements.

Workers (in the public and in the private sectors) have a constitutional and moral right to form associations and to advocate in and through those associations for their interests. They do not, in my view, have either a constitutional or a moral right to enlist government power to require those who have different views about those interests to contribute to their partisan or inescapably political activities. (It is clear that the pre-Janus requirements that public-employee unions allow objecting workers to withhold funds for ideological activities are not strictly observed.)

I welcome others' reactions, of course! 

June 27, 2018 in Garnett, Rick | Permalink | Comments (0)