Monday, March 30, 2015
In this time of embarrassingly poor reporting at the intersection of law and religion, it can be helpful to recognize that not all law-and-religion matters divide on predictable lines. MOJ readers familiar with the joint editorial of various Catholic publications on the death penalty may therefore find of interest the New York Times Beliefs column from this past weekend: "Catholics on Left and Right Find Common Ground Opposing Death Penalty."
There was once a time in my life when I simultaneously subscribed to both The National Catholic Register and The National Catholic Reporter, and I have also subscribed at various times to First Things, Commonweal, America, and Our Sunday Visitor. (Much of this was before the internet and Catholic blogs were the kinds of sources they are now.) Eventually the cacophony was too much to take (particularly reading "news" stories on the same issues from both the Register and the Reporter in one sitting) and I have weaned off print subscriptions to all of them.
In any event, I'm hopeful for working together with Catholics and others here in Virginia to end the death penalty. Depending on how Glossip v. Gross comes down and on other developments, lethal injection may no longer be practicable. Proposed legislation that switches over to firing squad may be a useful way for both sides of the death penalty debate to put their respective positions before voters and legislators.
Thursday, March 19, 2015
Baude's "flouting the rule of law" critics should explain precisely which rule of law his proposal flouts
In the dust-up over Will Baude's op-ed proposal for plaintiff-specific compliance in King v. Burwell, one peculiar feature stands out. Some of Baude's legal critics contend that the Obama Administration's adoption of his proposal would flout the rule of law even while they do not identify any particular rule of law that the Administration would be violating. As far as I have been able to discern to this point, there is none.
The opening paragraph of Noah Feldman's Bloomberg View commentary contends that "[o]beying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law." But one reads that essay in vain for an identification of which specific rule of law would be violated, flagrantly or not. Feldman's opening sentence asks: "Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed?" The problem with this sentence--as we know Feldman knows from elsewhere in his commentary--is that Baude makes no such proposal. Baude's proposal is not to ignore the Supreme Court's judgment, but to obey the Court only with respect to the plaintiffs in the case.
Relatedly, Josh Blackman's commentary at National Review Online describes Baude's proposal as a "procedural putsch" (though it is probably more precisely pegged only as "precedential parsimony"). Blackman accuses the Obama Administration of making "unprecedented assertions of power" that "have flouted the rule of law," but he ultimately differentiates the question of legal correctness from the rule of law. "Even if legally correct," he writes of plaintiff-specific compliance,"this practice should be emphatically rejected."
I understand the political and practical difficulties posed by plaintiff-specific compliance in King v. Burwell. And I understand why some others of Baude's critics disagree with his proposal even while acknowledging that he is right about its legal permissibility. But the "rule of law" criticisms are of a different sort, and they remain puzzling insofar as they are untethered from what one might call "the law of law."
In the United States, there are three ways that a court's judgment can have binding legal effect: the law of preclusion, the law of precedent, and the law of remedies.
Of these three types of "law of law," both the law of preclusion and the law of precedent operate primarily in other, later cases. If the government were to lose in King v. Burwell, a non-party to that case could almost certainly use non-mutual offensive issue preclusion to win another challenge to the subsidies in a later case. [UPDATE: D'oh! Shouldn't have needed to be reminded, as I was shortly after posting, about United States v. Mendoza. Non-mutual offensive issue preclusion is unavailable against the federal government.] But it would not even be necessary to rely on preclusion, for every court would be bound as a matter of precedent to hold the subsidies illegal. To the extent that the doctrines of preclusion and precedent operate only in other, later cases, however, their reach extends only to whichever other, later cases there happen to be. Given the nature of the relief sought in King v. Burwell, there may not be very many such cases.
By contrast with the law of preclusion and the law of precedent, the law of remedies at least has the potential to provide for broader binding effect in King v. Burwell itself. If legally authorized, a nationwide injunction against the responsible government officials would authoritatively forbid any further implementation of the challenged subsidies. But the legal propriety of a nationwide injunction is far from clear.
Josh Blackman addressed some of the issues relevant to nationwide injunctive relief in two earlier posts criticizing Baude's proposal, ultimately suggesting that "unusual factors" in this case would allow for a nationwide injunction. But the reason that he had to rely on "unusual factors" is that the usual approach toward injunctive relief would require that the injunction should only be as broad as necessary to give the plaintiffs relief from their injury, and the King plaintiffs do not advance nationwide injury requiring nationwide relief. (It might also be worth noting that Blackman discusses D.C. Circuit precedent about nationwide injunctions, but not the seemingly more confining Fourth Circuit precedent that would govern in King if the Supreme Court itself does not specify the scope of injunctive relief. See, e.g., Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 434-36 (4th Cir. 2003) (reversing nationwide injunction that was "broader in scope than that necessary to provide complete relief to the plaintiff" and that "did not carefully address only the circumstances of the case").)
Another way of coming at the scope-of-injunctive-relief issue is to imagine that the King plaintiffs had sought to represent a class of all subsidy-eligible plaintiffs and asked a court to certify that class under Rule 23(b)(2). Would it have been proper to certify the King plaintiffs as representatives of such a class? Not a chance. Why, then, should they be able to secure an injunction that would accomplish the same result?
The reason this all seems confounding is that it would usually be foolish to engage only in plaintiff-specific compliance with a Supreme Court ruling. But that is largely because of all the court losses that would follow in later cases. Those losses would be attributable, however, to the law of precedent and the law of preclusion, not to a nationwide remedy. And it would be a mistake to treat the potential absence of enough later cases in which precedent or preclusion would compel practical nationwide compliance as an argument for authorizing nationwide injunctive relief.
Perhaps I am missing something. But until Baude's "flouting the rule of law" critics explain which particular rule of law would be violated by adoption of his proposal, I don't know how to find my way to agree with them on this point.
To say that plaintiff-specific compliance is legally permissible is far from suggesting it would be advisable for the Obama Administration to follow that course. There is much that is legally permissible that is inadvisable for any number of reasons. And I would not advise being so grudging in King v. Burwell.
It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court's crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.
Sunday, March 15, 2015
As a Catholic Virginian, it was somewhat jarring to read in the same sitting Thomas Jefferson's correspondence from approximately two hundred years ago and a statement of Terry McAuliffe's spokesman reported in Friday's Richmond Times-Dispatch. From Jefferson there was condemnation of various dogmas of the Catholic faith, while from McAuliffe's spokesman there was confusion about Catholic teaching.
Governor McAuliffe's spokesman publicly professed him to embrace what Jefferson privately condemns-- Catholic faith. But it remains unclear what the governor's professed faith has to do with his actions in office. The spokesman portrays Catholic teaching on the protection of unborn human life and the definition of marriage to require a man and a woman as improper for implementation in public law: "The governor is a lifelong Catholic who takes his faith very seriously. . . . He also believes in keeping government out of decisions that should be left to women and their doctors, or to consenting adults who love each other.”
As for Jefferson, it is difficult to know which of his many expressions on matters of false faith would be the best to quote for a flavor of his thinking. But an aside in his Halloween 1819 letter to William Short includes a helpful list of examples of the "imputation of imposture, resulting from artificial systems, invented by ultra-Christian sects, unauthorized by a single word ever uttered by [Jesus]," from which Jefferson believed it desirable to rescue the enlightened teachings of Jesus (whom Jefferson described in the same letter as the "greatest of all reformers of the depraved religion of his own country").
Jefferson's list of imputations of imposture contains "[t]he immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, regeneration, election, orders of Hierarchy, &c."
Given this list, Jefferson would presumably be disappointed to find the spokesman of the present governor of Virginia professing Governor McAuliffe a "lifelong Catholic who takes his faith very seriously." But this disappointment would probably be offset by attention to Governor McAuliffe's public actions with respect to the law over his spokesman's public words with respect to the governor's faith.
Tuesday, March 10, 2015
Marshall on political liberty, the Declaration of Independence, and Jefferson's 1801 inaugural address
A recent reading of some of John Marshall's correspondence provides grounds to doubt both the standard narrative of the American Revolution offered in the Declaration of Independence and the counter-narrative offered by Christopher Ferrara in Liberty, the God that Failed: Policing the Sacred and Constructing the Myths of the Secular State, from Locke to Obama.
The contents of the Declaration of Independence, including its recitation of a "long train of abuses and usurpations," should be well known.
Here is Ferrara describing his counternarrative:
In the final decades of the 18th century radical coteries in America and France, guided by the thought of Hobbes, Locke, and the philosophes of the "moderate" Enlightenment, and animated by a burning antipathy toward monarchs and institutional religion, employed propaganda, the exploitation of popular grievances, and political theater to incite a small segment of the populace, almost entirely in key urban areas, to revolt against existing authority. (Ferrara, Liberty, the God that Failed at 8)
To the extent that Ferrara's counter-narrative captures some aspects of the American Revolution, it captures more of a Jeffersonian strand than to represent the thought and actions of individuals like George Washington and John Adams. This counter-narrative thus shares a Jefferson-centric way of thinking with the standard narrative rooted in the Declaration of Independence.
Writing to Edward Everett in 1826 to acknowledge his receipt of Everett's oration on the fiftieth anniversary of independence, John Marshall described the Declaration of Independence as more of a public-relations piece than an account of the true reason for the American Revolution, even while insisting that "[t]he war was a war of principle." Here's Marshall:
Allow me to express the peculiar satisfaction I felt at reading your statement of the causes in which our great revolution originated. Our resistance was not made to actual oppression. Americans were not pressed down to the earth by the weight of their chains, nor goaded to resistance by actual suffering. "They were not slaves rising in desperation from beneath the agonies of the lash; but freemen snuffing from afar 'the tainted gale of tyranny.'" This view of the subject is not only more consistent with the fact, but is more honorable to the intelligence of those virtuous patriots and sensible men who dared to lead us into the mighty conflict. The long list of tyrannical acts which is found in our declaration of independence, and which swells the papers of the day, was judiciously inserted as tending to produce unanimity, and was justified by the irritated feelings of the moment; but the time is arrived when the truth may be declared, and it is most honorable to our ancestors to declare it. The war was a war of principle, against a system hostile to political liberty, from which oppression was to be dreaded, not against actual oppression. (John Marshall to Edward Everett, August 2, 1826)
Twenty-five years prior, a Marshall letter to Charles Cotesworth Pinckney on the day Marshall administered the oath of office to Jefferson reveals the distance in political philosophy between Marshall and Jefferson. Marshall wrote:
To day the new political year commences--The new order of things begins. Mr. Adams I believe left the city at 4 OClock in the morning & Mr. Jefferson will be inaugurated at 12. There are some appearances which surprize me. I wish however more than I hope that the public prosperity & happiness may sustain no diminution under democratic guidance. The democrats are divided into speculative theorists & absolute terrorists: With the latter I am not disposed to class Mr. Jefferson. If he arranges himself with them it is not difficult to foresee that much calamity is in store for our country--if he does not they will soon become his enemies and calumniators.
I have administered the oath to the President. You will before this reaches you see his inauguration speech. It is in the general well judged & conciliatory. It is in direct terms giving the lie to the violent party declamation which has elected him; but it is strongly characteristic of the general cast of his political theory.
(John Marshall to Charles Cotesworth Pinckney, March 4, 1801)
Monday, March 9, 2015
The Supreme Court this morning granted certiorari, vacated the Seventh Circuit's decision denying Notre Dame's RFRA challenge to the HHS mandate, and remanded for reconsideration in light of Burwell v. Hobby Lobby Stores Inc. Given that the Seventh Circuit's decision pre-dated Hobby Lobby, this course of action makes good sense. (The petition and related briefs are linked at SCOTUSBlog.)
Wednesday, March 4, 2015
Insufficiently chastened by my embarrassingly inaccurate pre-argument assessment of Yates v. United States, I thought I'd share a few pre-argument thoughts on King v. Burwell. Once the arguments take place, it is very difficult to recover the frame of mind one had about what the Justices ought to have thought after exposure to what they actually think (or at least appear to think as of the time of argument). But preserving this pre-argument frame of mind for later re-examination can helpfully contribute toward calibrating one's assessments as a lawyer about the kinds of arguments that have currency at the Court at any given moment in time. This is not to say that "currency at Court at any given moment in time" is the only, or the best, or even a reliably sound measure of what makes for a good legal argument all things considered, but having a sense of what the various Justices believe to be good arguments at any given moment in time is important enough to be worth being wrong about.
To slough off all but the most intrepid of readers (if I haven't already), I'll begin with a meta-meta-meta-point about law professor commentary on King v. Burwell. The prompt is Paul Horwitz's post about what he calls "Randy Barnett's latest ref-working post." As typical of his meta-meta-posts, Paul's post about Randy's meta-post contains much to agree with. His identification of many other reasons--besides "ref-working"--that legal academics and legal journalists write commentaries of the sort that Randy criticizes is helpful and accurate as far as it goes. But when Paul turns (in his point 5) to "what Randy himself is engaged in doing," he submerges the simplest and best explanation, which is that Randy is sincerely and appropriately concerned that Chief Justice Roberts buckled in NFIB v. Sebelius and made a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court. Randy does not want this to happen again; he worries not only that other people do, but also that they are working to bring that about, so he tries to counter it even while recognizing the likely futility of such an enterprise given his view of what happened in NFIB v. Sebelius. (If this explanation of Randy's reason for writing is accurate, I disagree with Randy on this point, but I realize why he would think I am wrong and he is right about this. Planned Parenthood v. Casey stands as a monument to various Justices' capacity to make a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court.) Sure, Randy's post "can be read" as "an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of 'the left' to flatter or threaten the Chief." But much "can be read" many ways (as Paul recognizes elsewhere throughout his post), and I draw a different lesson in this meta-meta-meta commentary. (WARNING: "moral sermonizing" ahead.) Most of us can't shake the idea that the Justices are and ought to be "refs," even--and especially--in cases like King v. Burwell. And that is a good thing even while we shouldn't let our attachment to this idea unduly influence our assessments of the extent to which they actually succeed in that role.
Now for some thoughts on the issues in the case:
Saturday, February 28, 2015
I second Rick's evaluations of the comments on the importance of theology in the core curriculum at Notre Dame by Cyril O'Regan ("excellent") and Michael Sean Winters ("very thoughtful and wide-ranging"). I'll add John Cavadini's essay (linked by Winters): "Why Study God? The Role of Theology at a Catholic University." If one accepts Cavadini's description of the significance of a theology department in a university, it should follow that at least one theology course must be part of the required course of study if any course is to part of a required course of study. Cavadini writes:
[A] university community that accepts in its midst a theology department is not different simply because it accepts one more discipline than secular universities do. In accepting that discipline, a university isn’t just adding another element to the paradigm already in place at secular universities; it is accepting an altogether different paradigm of the intellectual life—a paradigm of intellectual culture as a dialectic between faith and reason, to use the traditional expression. Having a theology department means accepting a commitment to the intellectual life as oriented toward an “understanding” of something that integrates and transcends all the disciplines. Such an understanding keeps each discipline from closing in on itself and proceeding as if the truths it discovers were incommensurable with the truths discovered by other disciplines. It means openness to a conversation that necessarily transcends each discipline but is not merely “interdisciplinary.” If the disciplines converge at some point, it must be at a point “above” them all, in a discipline that has as its explicit object of study the mystery that transcends all other objects of study. Otherwise one must either force nondisciplinary solutions of questions onto the disciplines (e.g., claiming that faith is an adequate answer to scientific questions), or declare that knowledge is hopelessly fragmented into incommensurate disciplinary truths.
For an intellectual community operating within the paradigm Cavadini describes, it is hard to know what required courses--if any are to be required--should take precedence over courses in the discipline that "has as its explicit object of study the mystery that transcends all other objects of study."
On this subject, I speak from some personal experience, although not the experience of a student who took a required undergraduate course in theology. I did not attend a Catholic university as an undergraduate. As I approached the end of my undergraduate studies, however, I realized something important had been missing from my academic studies. And I sought to remedy that through graduate work in theology.
As an undergraduate at Dartmouth, I was fortunate to be part of a vibrant Catholic community at Aquinas House, where I could learn and grow exposed to the intellectual, personal, and spiritual guidance of chaplains, professors, and peers. But I had nothing in my formal coursework in which the professor by disciplinary commitment was committed to helping me to ask and answer questions about God. I did find professors who could and did help me in that regard (and it helped beyond measure that our lead chaplain had a philosophy Ph.D.), but such help was extra-curricular.
It was not until I pursued graduate study in theology at Notre Dame that "faith seeking understanding" was part of--indeed, precisely the reason for--the formal academic curriculum. That year of study was among the most formative years of intellectual development for me. And it almost didn't happen. I was originally denied admission to Notre Dame's program for failure to satisfy the prerequisite requirements of a certain number of "religion" courses. I sought (and was eventually able) to use a combination of courses from other departments in which I had studied Aristotle and Aquinas (among others) to satisfy the prerequisites. Those courses seemed more foundational to the study of Catholic theology, in any event, than many of the offerings in Dartmouth's religion department. And my experience bore that out. With the exception of two religion courses that were atypical in various ways for the religion department (one on Augustine and another on Aquinas), my undergraduate courses in the philosophy, government, and history departments were, indeed, better preparation for the study of theology.
My theology courses were stocked full of valuable propositional content, but I found that their primary value in relationship to my studies more generally was to supply new horizons and new perspectives on everything else. With God no longer missing from the foreground of my academic study, matters appeared differently. The differences are difficult for me to describe precisely, but Cavadini's explanation of how "[a]n undergraduate course in theology is essentially different from, say, an undergraduate course in history" illustrates how such differences emerge:
Why should undergraduates be required to take courses in theology? An undergraduate course in theology is essentially different from, say, an undergraduate course in history. Even if both courses use some of the same texts, they will use them in different ways. The history course will examine the circumstances of their production, the culture behind them, the social situation for which they provide evidence. But the point of a theology course is to find out about God, in and through the properly disciplined study of these texts. If a student asks a question about God in a history class, the instructor is free to answer, “That’s not a relevant question in this class” (or, as it was put to me somewhat indecorously in a class at the non-Catholic institution where I studied as an undergraduate, “Please leave your theological baggage at the door”). But for a theology instructor to reply in the same way would be to violate the very identity of one’s discipline. Students are right to ask about God, and all matters related to God, in a theology class, where the question is not finally “What influences were operating in Julian of Norwich’s social setting that caused her to have visions?” or “What did Thomas Aquinas think about God?”—though such questions are certainly and necessarily involved—but rather “How has this study helped me think about God and God’s self-revelation?”
There are undoubtedly many considerations that go into the determination of whether to have required courses, and what to require. But at a Catholic university, it seems to me that the core of a case for required theology coursework goes something like this: Undergraduates have theological questions. Theological questions deserve theological answers. At a Catholic university, those questions and answers can and should be addressed with theological discipline.
Friday, February 27, 2015
Lest anyone lamenting the state of affairs that now persists in constitutional adjudication at the Supreme Court think that we just need return to an earlier, purer time (and one also without law clerks given to verbosity), these 1827 reflections by Charles Hammond (occasioned by Ogden v. Saunders) may supply something of a corrective:
I wish to detract nothing from the high reputation of the judges of the Supreme court, either as men or as lawyers. I must, however, be permitted to express my opinion, that they have run into some very mischievous errors. One is the deep admixture of political expediency, which is infused into and pervades many of their decisions, especially in expounding the constitution. It was once a leading axiom, that justice was blind as to every thing, but the case immediately before her. She could neither see parties, nor look to future consequences. In the Supreme Court this axiom is not regarded. Justices there look with eagle eyes to the parties in the cause, and to the connection between the case to be adjudicated, and its most remote, and often improbable bearings upon the same, or other parties in different situations. Thus, in attempting to shape a decision in one case, so as to quadrate with all possible cases, policy & expediency become the principal topics of examination. And a judicial decision is made to bear a strong analogy to legislative enactment.
Another of these errors is the substitution of an elaborate train of reasoning, for brief and explicit decision. This is closely connected with the first error, and in a good degree originates in it. When a proposition is laid down, and either narrowed or extended with a view to remote and merely supposable consequences, all these must be explained. The probability that they may arise, the evils they may bring with them, the indispensable necessity of obviating these anticipated evils, must all be made out. Thus a legal opinion, instead of deciding the case in hand, is made to resemble the thesis of a student, and consists of hypothesis and inference, spreading over an almost interminable surface.
Charles Hammond, "Insolvent Laws," Cincinnati Gazette, March 27, 1827
Thursday, February 26, 2015
Virginia's Terry McAuliffe is "personally opposed, but ..." And he has recently taken this mainstay of Catholic political life to a new level.
In his push for lethal injection drug secrecy legislation during this year's General Assembly session, Governor McAuliffe simultaneously proclaimed his personal opposition to capital punishment while pushing for new legislation to make sure that other people's moral opposition would not get in the execution team's way through the free choice of third parties not to participate publicy in the execution process.
After the McAuliffe Administration's lethal injection secrecy bill was defeated in the House of Delegates this week, the administration took steps to try to get the House to reconsider, as reported by Jenna Portnoy of the Washington Post. But the Governor took no public responsibility for these efforts (mirroring his public hands-off approach to Virginia Attorney General Herring's stance on the federal unconstitutionality of Virginia's constitutional definition of man-woman marriage):
Brian Coy, a spokesman for McAuliffe (D), declined to comment on the agency’s efforts to flip lawmakers’ votes and referred to his earlier statements on the issue. Coy has said the governor does not support capital punishment but it is his responsibility to uphold the law.“He is a Catholic,” Coy has said, “so there is a moral component to his position on the issue, but he’s governor, and he will enforce the law.”
Wednesday, February 25, 2015
I rarely laugh out loud when reading Supreme Court decisions. One exception occurred a few minutes ago as I read Justice Kagan's dissent in Yates v. United States. As authority for the proposition that a fish is a discrete thing that possesses physical form, Justice Kagan throws a "see generally" to Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). Demonstrating some restraint later in the dissent, Justice Kagan did not provide the obvious Dr. Seuss citation ( "cf. Horton Hatches the Egg") for the assertion that "Congress said what it meant and meant what it said."