Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, November 14, 2016

Harvard Law Review issue dedicated to Justice Scalia

Find the brief In Memoriam in the current issue posted here. Justice Kagan's remarks are especially moving. 

November 14, 2016 in Bachiochi, Erika | Permalink

Sunday, November 13, 2016

"Religious Freedom and the Common Good"

That's the title of a symposium this Tuesday, November 15, organized by the Religious Freedom Project (RFP) of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. A number of social scientists will present their work on the relation of religious freedom to the domestic and international common good. As a legal scholar, I will join the opening panel and present some suggestions on how these findings might relate to legal doctrine, and how doctrinal questions in turn might suggest further research emphases.

Here's a bit of the symposium description:

 Our symposium will explore the following: To what extent is religious liberty critical for human flourishing? When and how does it contribute to economic prosperity, democratization, and peace? What challenges face religious communities living under repressive governments or hostile social forces? How is the persecution of religion related to other infringements of basic human rights? What is the relationship between religious freedom and violent religious extremism, and is there a role for religious freedom in efforts to undermine radicalization and counter violent religious extremism and terrorism over the long term?

Any readers who are inside or near the Beltway--this should be a really interesting and enlightening day of presentations.

November 13, 2016 in Berg, Thomas, Religion | Permalink

Friday, November 11, 2016

Notre Dame Center for Ethics & Culture Fall Conference on Beauty this weekend

An amazing line-up. If you are in or near South Bend this weekend, come by.  Congratulations to my good friend, Carter Snead, the Center's Director.

November 11, 2016 in Garnett, Rick | Permalink

Assisted suicide adopted in Colorado; Blaine Amendment survives in Oklahoma; the Death Penalty reinstated in Nebraska

Assisted suicide -- or, the euphemism "dignity in dying" -- was embraced overwhelmingly in Colorado.  The anti-Catholic (and, in any event, foolish) Blaine Amendment was retained in Oklahoma; and Nebraska brought back capital punishment (after it had been abolished in the way, in my view, it should be, i.e., legislatively and not judicially).  

November 11, 2016 in Garnett, Rick | Permalink

Camosy on what happened Tuesday

"Higher education is isolated, insular, and liberal.  Average voters aren't", writes Charlie Camosy in the Washington Post.  He also points out the problems with the "angry, misogynistic white men did this" accounts.  I'm inclined to agree with this (intemperately worded, in places) piece, also, which highlights the role that frustration-with-being-the-objects-of-smug-contempt probably played.

Clearly, like pretty much everyone, I read the situation incorrectly and so, like pretty much everyone (in, as Charlie reminds me, my bubble), am surprised by the results.   I continue to have the views about both Mr. Trump and Mrs. Clinton that I expressed a few months ago, here.  Still, I'm hoping and praying for the best.

November 11, 2016 in Garnett, Rick | Permalink

Wednesday, November 9, 2016

Evangelicals, Trump, and Moral Credibility

A couple of days before the election, The Gospel Coalition, a leading evangelical website, did a story comparing the prospects for religious liberty under Clinton and Trump. I was interviewed, and I emphasized the likely "direct" religious-liberty threats to conservative religions that a Clinton administration would have posed; then I referred to problems posed by Trump. Those included direct threats to Muslims, but also this "indirect" problem even for white evangelicals' religious liberty, that is, in the long-term:

“Part of the answer has to be that evangelicals act in a way that maintains the kind of moral credibility that allows you to witness for religious freedom,” Berg said. “It’s going to be very interesting to see how the next generation proceeds and how they renew the witness. It certainly needs to be renewed, given how many evangelical leaders have seemed willing to minimize Trump's character problems just because he claims he'll protect religious liberty.”

Despite their efforts to distinguish Trump's many bad words and deeds from his stated policy positions on issues like religious freedom, many white evangelicals have risked their moral credibility by effectively minimizing his narcissism, crudity and meanness, and ethnic and sexual chauvinism. And in an increasingly hostile society long-term, conservative evangelicals will need moral credibility to strengthen their claims for religious freedom.

Now those who've endorsed him are effectively tied to his statements not just for a few months' campaign, but for a four-year term in office. And the stakes are high, especially for the future of evangelicalism. White evangelicals went for Trump 81 to 16 percent (up somewhat from the numbers for Romney and McCain, who were quite different candidates in moral character). Meanwhile, young voters--millennials--went disproportionately (54 percent) for Clinton (as they had, even more so, for Obama). Millennials are already more non-religious than previous generations; the association of evangelicals with Trump threatens to intensify that.

Let me be clear: I understand the reasons for evangelicals to oppose Clinton, even support Trump, because of concerns about abortion and religious liberty. But what is absolutely plain is that evangelical leaders (institutional, media, etc.) must hold him accountable, on an ongoing basis, for his behavior in office. They must criticize him vigorously for any statements or policies attacking minorities, or women, or individuals with whom he gets in a spat. If they do not give him such dogged scrutiny and criticism, their credibility will steadily erode over the next four years--with awful results for their evangelistic task and, ultimately, for their ability to argue for freedom to serve others through their religious organizations.

November 9, 2016 in Berg, Thomas, Current Affairs | Permalink

Tuesday, November 8, 2016

O tempora, o mores!

According to Sallust, on this date in 63 BC, Cicero delivered his first oration to the Senate against Lucius Sergius Catilina (Catiline), the corrupt Roman politician who was up for election and who, in Cicero's view, was in large measure responsible for the degradation and ultimate destruction of the republic. 

...iam intelleges multo me vigilare acrius ad salutem quam te ad perniciem rei publicae

November 8, 2016 in DeGirolami, Marc | Permalink

Dorothy Day on Politics

It seems somehow fitting that this Election Day falls on the birthday of Dorothy Day (1897). I usually include a unit on Day when I teach courses on Catholic social thought because she is wonderfully disruptive of our usual categories. And so here are some quotes for today from this remarkable woman on matters broadly political (Day, of course, was essentially an anarchist when it came to what we would count as "politics"):

From "Our Fall Appeal," The Catholic Worker, November 1955:

In the light of our present difficulties it is necessary to restate our position and tell our readers again just what it is we are trying to do–what it means to us to perform the works of mercy, spiritual and corporal. The most important thing in the world to us is to grow in the love of God, to try to do His will. Our Lord Jesus told us that what we do to the least, we do to Him. St. Paul told us we are “members one of another, and that when the health of one member suffers, the health of the whole body is lowered.”

We believe not only in St. Thomas’ doctrine of the common good, but feel it can be affected only if each one of us alone realizes his personal responsibility to his brother, that his love for God must be shown in his love for his brother, and that love must be expressed in the works of mercy, practiced personally, at a personal sacrifice. So we live together, here at the Catholic Worker, pool resources of money and abilities, and so are able to take care of far more than just ourselves.

People have so far lost that sense of personal responsibility that our country is becoming a country of institutions and a gigantic part of our income goes to support them. State responsibility has come to take the place of personal responsibility.


That love of brother, that care for his freedom is what causes us to go into such controversial subjects as man and the state, war and peace. The implications of the gospel teaching of the works of mercy, lead us into conflict with the powers of this world. Our love of God is a consuming fire. It is a fearful thing to fall into the hands of the living God. It is a living God and a living faith that we are trying to express. We are called to be holy, that is, whole men, in this life of ours.

From Loaves and Fishes (1963), p. 210:

One of the greatest evils of the day among those outside the proximity of the suffering poor is their sense of futility. Young people say, 'What good can one person do? What is the sense of our small effort?' They cannot see that we must lay one brick at a time, take one step at a time; we can be responsible only for the action of the present moment but we can beg for an increase of love in our hearts that will vitalize and transform all our individual actions, and know that God will take them and multiply them, as Jesus multiplied the loaves and fishes.

The greatest challenge of the day is: how to bring about a revolution of the heart, a revolution which has to start with each one of us? When we begin to take the lowest place, to wash the feet of others, to love our brothers with that burning love, that passion, which led to the cross, then we can truly say, 'Now I have begun.'"

From "For the New Reader," The Catholic Worker, December 1936:

THE CATHOLIC WORKER is strongly anti-Fascist because Fascism denies that man has a higher obligation than his obligation to the State, because Fascism believes that man is made for the State and denies that the State is made for man, because, although it believes and acts on these principles, as is apparent in Italy and Germany, it pretends to recognize religious, political, and economic rights, and is therefore more dangerous in many ways than the open enmity of Communism.

THE CATHOLIC WORKER is insistently anti-Communist, in spite of all you may have heard to the contrary, because Communism claims that “man lives by bread alone”; deifies comfort; denies religious, political, and economic freedom, though not as frankly as it did once; has replaced the capitalist and aristocrat with the Communist Party, but still enslaves and exploits the peasant and the proletariat; is, in short, no better than State Capitalism.

THE CATHOLIC WORKER is for Christian communism, as practiced in Catholic monasteries and by the early Christians, as an economy of perfection, possible only on a voluntary basis.

THE CATHOLIC WORKER is anti-capitalist, in the sense that it condemns the spirit of greed, of rampant materialism, that has become synonymous with that system and has led to the present abuses in production and distribution.

THE CATHOLIC WORKER is not opposed to private property, but on the contrary works for “the restoration of property” through co-operatives, credit unions, and the back-to-the-land movement. It supports private ownership of the means of production, except where such ownership is incompatible with the common good, as in certain public utilities, but opposes the concentration of productive power in the hands of a few, because that concentration has almost always been destructive of the common good.

THE CATHOLIC WORKER is not opposed to “saving for a rainy day” and for the support of one’s dependents, but is more interested in giving, not only because it is the duty of Christians to give their surplus to the poor, but also because it is good economics to distribute idle money among those who will spend it.

THE CATHOLIC WORKER does not condemn any and all war, but believes the conditions necessary for a “just war” will not be fulfilled today.

THE CATHOLIC WORKER admits the importance of political action, but is much more interested in the importance of private action, in the creation of order out of chaos.

THE CATHOLIC WORKER admits the importance of public responsibility for the poor and needy, but is much more interested in the importance of personal responsibility for the hungry, thirsty, naked, homeless, sick, criminal, afflicted, and ignorant.

November 8, 2016 in Moreland, Michael | Permalink

Mary, Undoer of Knots, Pray for Us


November 8, 2016 | Permalink

Monday, November 7, 2016

What's so great about 5-4 decisions ASAP anyway? Some further thoughts on reducing the Supreme Court to seven Justices.

Picking up on an issue that most Americans aren't paying attention to at the moment, the New York Times has a house editorial titled "A Coup Against the Supreme Court." I recommend you read it and think about the editors' use of language while doing so. Are they not careless in using words like "coup" and expressing worries about "the very survival of the court as an independent body"?

The editors are concerned that the Supreme Court will be short-handed if Senate Republicans don't vote to confirm a ninth Justice. This worry may not matter after tomorrow's elections, but the editorial seemingly contemplates a Democrat as President with a Republican majority in the Senate, so let's go with it.

There is currently one vacancy on the Court. Three more may emerge over the next few years if one uses the number of Justices aged eighty years or older on the Court as a reasonable indication of the number of vacancies that could occur. With four appointments, the next President may have an opportunity to shape the future of the Court, and of the constitutional law promulgated by that body, in a way that hasn't been seen since FDR.

Should the next President be trusted with that profound responsibility on her own? Would the editors of the New York Times be so convinced of the duty of Senators to confirm presidential nominees to the Supreme Court today if they believed Donald Trump were likely to win tomorrow? Or might it be that our Constitution's requirement of Senate serves a practical purpose by preventing that unilateral executive action? 

I've previously argued that now is the time to reduce the size of the Supreme Court from nine justices to seven. I continue to believe that is the best path for the Court and for our country.

Many of my reasons match Michael Stokes Paulsen's arguments for bringing the Court down to six in "The Case for Shrinking the Supreme Court." I also see the attractions of the arguments offered by John McGinnis and Eric Segall about how an eight-Justice Court might be good for America. With an even number of Justices, though, both of these proposals present a risk of an evenly divided Court. People overestimate the negative consequences of such a division. But there is an admitted cost of disuniformity when lower court decisions go different ways on the same legal issue. If there were seven Justices on the Court, the problem of persistent even splits would not be much greater than if there were nine.

With seven Justices, it would only take four instead of five to conjure up a new constitutional right that lasts as long as a majority of the Court wants it to last. And it might be a bad idea to make it even easier to make up new rights. But the flip side is these invented rights could be undone by four votes as well. Live by the four, die by the four. And worries about that kind of reversal might induce the Justices to exercise more self-restraint. The six- and seven-Justice Court that Chief Justice Marshall presided over in the early nineteenth century, for example, didn't give rise to a series of constitutional rulings undone by later courts. And maybe Justices who have seen the size of the Court reduced on their watch and recognize their own responsibility for that reduction would be less adventuresome than they otherwise would be.

One wonders whether the editors of the New York Times have given thought to the possibility that it might be better if the Court able to operate for a time outside the kind of fevered environment that descends on Washington whenever there is a confirmation hearing.

Why not lower the temperature with a pause? Drop to seven, then let the current vacancy and the next one go.

The editors' favored Justices would still hold a majority on the Court. And the lower federal courts would remain as they have been shaped by President Obama over the past eight years. 

Does our country really need to go through all that we go through with a confirmation process just so that we can make more 5-4 decisions a reality? Does the Court?

Asking these questions is nothing like calling for a coup. The size of the Supreme Court is left up to ordinary legislation. And there's nothing special about nine.

Some of the Court's best years came with a composition of seven. Congress has twice before acted successfully to reduce the size of the Supreme Court at a time of presidential transition. It can do so again.

If the Republicans control the House and the Senate, they can pass legislation anticipatorily reducing the size of the Court to seven, effective as of the next vacancy. President Clinton can veto that legislation, for sure, but she won't be able to fill any vacancies without a majority of the Senate to vote on and for any nominee.

If that were to happen, the Republic would endure. Or so we may hope. And if it doesn't, it won't be because the next President didn't get her nominees confirmed to a nine-Justice Court.

And now let us step back and be real.

All of this has assumed, along with the editors of the New York Times, that we will be looking at divided government after tomorrow's elections, with President Clinton in the Oval Office and a Republican majority in the Senate. If that is how things shake out, though, Senate Republicans would most likely confirm Judge Garland if they can. He is likely to be less dangerous to the Constitution--and older--than a Clinton nominee.

If anything, though, this state of affairs would strengthen the arguments for moving prospectively toward a seven-Justice Court. Justice Garland is even less dangerous to the Constitution on a soon-to-be-diminished Supreme Court. 

November 7, 2016 in Walsh, Kevin | Permalink