Mirror of Justice

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Saturday, February 28, 2015

A personal perspective on the place of theology in the core curriculum at Notre Dame

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.

February 28, 2015 in Walsh, Kevin | Permalink

Friday, February 27, 2015

Charles Hammond on the Supreme Court's attention to "policy & expediency" (1827)

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

February 27, 2015 in Walsh, Kevin | Permalink

Thursday, February 26, 2015

"He is Catholic, so there is a moral component to his position on the issue" ... which is, what?

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.”
The problem with this is that the new lethal injection secrecy law would have been precisely that ... new law. Governor McAuliffe was not seeking simply to "enforce the law," but to change it--and for the worse. Meanwhile, where was Mr. Coy's proclamation of Governor McAuliffe's commitment to "enforce the law" when it comes to marriage? 

February 26, 2015 in Walsh, Kevin | Permalink

Wednesday, February 25, 2015

Dr. Seuss in Justice Kagan's Yates dissent

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."

February 25, 2015 in Walsh, Kevin | Permalink

Tuesday, February 24, 2015

Death penalty drug secrecy bill defeated in Virginia

I'm happy to report that the Virginia House of Delegates a few hours ago voted down a proposed death penalty drug secrecy bill (SB 1393). I posted on MOJ a couple of weeks ago in opposition to this bill, and subsequently co-authored an op-ed with my colleague Corinna Lain that built on the MOJ post. I then testified before a House of Delegates subcommittee and committee. All of this seemed to be of little effect (as the subcommittee and committee vote counts show). But the tide somehow turned, and at least some of this must be due to persistent lobbying by the Virginia Catholic Conference, the Virginia ACLU, and Virginians for Alternatives to the Death Penalty, whom Corinna and I had been working with, as well as opposition by the Virginia Press Association and other open-government advocates.  It is impossible to know what would have happened without any push from all these groups. And it is nice to think that a bill so evidently flawed would have collapsed of its own weight when delegates were free to vote their conscience without regard to party discipline (as they were). But it is gratifying to see the outcome one has been pushing for reflected in the final vote, especially when the outcome comes as a surprise. (To show how surprising the outcome is, I've included below the draft post that I wrote this morning but was unable to finish before other matters demanded my attention. It seems my draft observations about the distorting effects of death-penalty politics were not across-the-board accurate. Happy to be proven wrong.)

Continue reading

February 24, 2015 in Walsh, Kevin | Permalink

Tuesday, February 10, 2015

Against Death Drug Secrecy in Virginia

Earlier today the Virginia Senate passed a bill (SB 1393) to hide from public view both the drugs used to execute convicted capital criminals in the Commonwealth and those who supply these death-dealing drugs. The best explanation behind a bill like this is to shield Virginia's death-drug suppliers from criticism. Virginia apparently intends to rely on compounding pharmacies that are only willing to supply death-penalty drugs as long as nobody knows who these pharmacies are and what they are doing. 

This bill does nothing to make death-penalty administration easier any time soon. If enacted, its main effect in the next months and years will likely be to wrap officials up in new constitutional litigation in which expenditures of time and money are the only guaranteed outcomes. Nor would this legislation advance any valid purpose of criminal punishment. Virginia has death-penalty drugs on hand. Should this supply run out and not be replenished (however unlikely), electrocution remains available under state law.

In truth, this legislation is not really about making executions happen. It is about insulating execution administration from criticism. That is not a good reason to pass a law like this. Although the death penalty is controversial, the right approach to controversy in a free society is not to hide what government does when it kills in the name of the law.

Self-government in a regime of ordered liberty requires critical review of the government's actions, including its administration of the ultimate penalty for criminal wrongdoing. As James Madison wrote in the Virginia Resolutions of 1798, the "right of freely examining public characters and measures, and of free communication among the people thereon, ... has ever been justly deemed, the only effectual guardian of every other right." 

If bad publicity is an undesired effect of being a death-drug supplier for the state, the solution is not to supply a shield from that publicity. With no disrespect to P.T. Barnum, we should all appreciate that, at least with respect to lethal pharmaceuticals, there is such a thing bad publicity, and that is good.

It would be a different matter--one calling for a different solution--if drug-compounding pharmacies were to be illegally threatened or intimidated. But that is not a real problem right now. The law already protects against threats and intimidation anyway, while there are (properly) not laws against being criticized. As Justice Scalia has written (in a distinct but related context), "[t]here are laws against threats and intimidation; [but] harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance." 

Among those testifying against this bill yesterday were my Richmond Law colleague Corinna Barrett Lain and Virginia Catholic Conference Executive Director Jeff Caruso. When I learned that the bill had barely passed out of committee on a 7-6 vote, I had hopes that it might fail in the Senate as a whole. But instead it passed by a 23-14 vote. Voting in favor were 19 Republicans and 4 Democrats; opposing were 13 Democrats and 1 Republican. Interestingly, 3 Republicans had voted against the bill in committee. When the whole body voted, though, one Republican flipped (Sen. McDougle) and another abstained (Sen. Stuart), leaving just one to vote against (Sen. Stanley). Meanwhile, this Republican-supported bill is sponsored by a Democratic senator (Dick Saslaw) and championed by a Democratic governor (Terry McAuliffe).

It looks like the only off-ramp from this bill becoming law is the Republican-controlled General Assembly. Will they do the bidding of Virginia's drug suppliers and pass SB 1393? Or will they dig deeper instead and do the right thing by declining to drape a veil of secrecy over lethal injections in Virginia?

February 10, 2015 in Walsh, Kevin | Permalink

Monday, February 9, 2015

On the redefinition of marriage in Alabama via federal district court order: "[T]his is not federal intervention. It's not federal intervention at all."

Instead of a torrent of criticism taking the Supreme Court to task for what Justice Thomas properly describes as the Court's "indecorous" pretension about the proper way to discharge their Article III responsibilities, we see a flurry of critical energy directed to Alabama Chief Justice Roy Moore. A New York Times headline, for example, asserts "Alabama Judge Defies Gay Marriage Law." Putting aside the question of what "gay marriage law" Chief Justice Moore is defying, the legal issues here come down to the scope of the federal district court's judgment and order and the scope of Chief Justice Moore's administrative authority with respect to the state judiciary. Howard Wasserman has previously discussed these issues and others in multiple posts at Prawfsblawg: "Roy Moore Gets it Right" (in his earlier memorandum, that is); "Queued up"; "More from Alabama"; "Sue Moore?" It would be nice if sometime down the road lawyers could take a look back and sort this all out once the legal grandstanding on all sides settles down. For now, though, I thought I'd pass along a peculiarly unassertive assertion by a lawyer for the prevailing parties in the Alabama federal litigation:

“Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it’s from a court or a federal agency,” said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade’s decision. “The situation here is that this is not federal intervention. It’s not federal intervention at all. What it is, is a federal court declaring what same-sex couples’ rights are under the federal Constitution.”

(Source: Last paragraph of NYTimes story linked above)

February 9, 2015 in Walsh, Kevin | Permalink

Saturday, February 7, 2015

Augustine's Confessions and "the call that had made him a bishop"

MOJ readers are likely to find of interest this essay on Augustine's Confessions by James J. O'Donnell.

February 7, 2015 in Walsh, Kevin | Permalink

Wednesday, February 4, 2015

Jurisdiction stuffing as a means of combatting judicial supremacy

The Supreme Court's haughty disregard of states as lawmaking governments was on full display this past fall when the Court green-lighted the judicial redefinition of marriage in several states without so much as the courtesy of letting the states argue their case to the Justices in person. Although surprising (and weak), the Justices' refusal to let themselves be bothered is consistent with the course steered by shifting majorities in the marriage redefinition litigation over the past few years.

One would be foolish to ignore the likelihood that various Justices, for their own reasons and mostly independently rather than pursuant to a conspiracy or some sort of grand plan, have been rationally pursuing an agenda for constitutional change in which these denials of certiorari were instrumentally useful.  If that assessment is accurate, these denials of certiorari illustrate one aspect of judicial supremacy as examined by Jeremy Waldron in his Francisco Lucas Pires Distinguished Lecture at the Catholic University of Portugal (noted on MOJ by Rick on All Hallows' Eve and posted to SSRN as complete as of the same day (9/29) that the Supreme Court decided at Conference to deny certiorari).

Waldron argues in this Lecture that "judicial review tilts towards judicial supremacy when the courts begin to think of themselves and present themselves as pursuing a coherent program or policy, rather than just responding to particular abuses identified as such by a Bill of Rights as they crop up." That seems to be exactly what the Supreme Court (admittedly a "they" rather than an "it") has been doing with respect to the definition of marriage. 

What can be done about this? It's worth asking. For while the problem of judicial supremacy is evident now in connection with marriage redefinition, the problem is much more widespread and it does not necessarily have a particular ideological valence. 

The more I've thought about the problem of judicial supremacy recently, the more I've come to think that one typical way of responding to it is sometimes exactly the wrong response (even though probably constitutional). That way is jurisdiction-stripping legislation. 

When the Supreme Court or some other federal court issues or threatens to issue a decision that legislators believe further separates or would further separate constitutional law (created by the courts) from the Constitution (under which the federal courts are created), legislators sometimes propose legislation that would remove certain categories of cases from federal court jurisdiction (and sometimes state court jurisdiction as well). This legislation virtually never succeeds (in part for reasons  explained by Tara Grove), but practical futility doesn't prevent these proposals from being proposed (which may be just as well for proponents when the proposals represent mere posturing). And even when such legislation succeeds, it does not eliminate bad precedent and does not entirely prevent the creation of new bad precedent. 

A potentially more promising response to judicial supremacy may be "jurisdiction stuffing." (I thought I made this phrase up, but it turns out that the phrase has already been coined and (probably planted deep in the part of my brain that lights up on federal jurisdiction matters) by Jim Pfander.) Instead of running from the Supreme Court, as in jurisdiction stripping, the idea of jurisdiction stuffing is to rush it. (The Super Bowl was just the other day; think of this defensive strategy as a blitz.) The mechanism would be mandatory appellate jurisdiction over a set of cases. This would deprive the Supreme Court of discretion to decline to decide that set of cases. It would thereby would curtail the Justices' exercise of one their most potent powers for pursuing a particular program of constitutional change, namely their agenda-setting authority.

Such legislation seems as constitutionally unproblematic as it is counter-intuitive. But the effects on substantive constitutional law could be significant. In particular, jurisdiction stuffing would likely moderate the Court's willingness to introduce major changes into constitutional doctrine in areas where they have mandatory appellate jurisdiction. This just makes more work for them. And knowing that will force them to confront directly the unsettling effects of their interventions. More broadly, jurisdiction stuffing could have a beneficial effect of making the Supreme Court more like a court. Most courts don't enjoy the freedom to set their own agenda the way that the Supreme Court does. In a world of judicial supremacy in which supremacy is not going away, the best strategy may be to try to make it more judicial in nature. 

All of the Justices, to varying degrees and in varying ways, are too much "big-picture-only" people in too many ways to be good judges in their big-picture-only world. One way of counteracting this is to force more immediate confrontation with the nitty gritty of how their big-picture pronouncements are supposed to be implemented doctrinally. Want to hold mandatory state sentencing guidelines unconstitutional? Well, the federal guidelines cases will be coming fast and furious. Want to insist on federal judicial supervision of detention at Guantanamo? Every single appeal of the denial of habeas relief is coming your way soon. Want to revive the Second Amendment and recognize a right to gun possession in the home? The gun possession in public cases are right around the bend. Want to redefine marriage? The cases that ripple out from that intervention will be on your desk later this year. And so on. 

There is no guarantee that jurisdiction stuffing would have the effect of putting the brakes on doctrinal change in constitutional law. Depending on how it is drawn up, mandatory jurisdiction over certain cases could end up replicating in practice the virtually unfettered discretion that exists under current certiorari practice. Before the elimination of mandatory appellate jurisdiction in a certain set of cases in 1988, for instance, the Court summarily disposed of many many cases without engaging in plenary review. And even if the Court were to grant plenary review in all the stuffed cases (perhaps because Congress figures out a constitutional mechanism to make that happen), there is also the risk that the Justices will use these opportunities to make even worse constitutional law. At some point, though, one needs to count on the fact that reason-giving practices and public scrutiny and the loss of legitimacy that would come from more blatantly smudging the law-politics boundary would bring the Justices back to operating in more of a judicial mode.

Even if jurisdiction stuffing were to have the desired effect of putting the brakes on change in constitutional law, that effect is not always desirable. When and where constitutional doctrine is in truly bad shape, the Supreme Court should be willing to overrule it and should not be unduly deterred by transition costs. But this consideration can be addressed, among other possible ways, through the criteria for identifying cases where jurisdiction should be stuffed. Consider, for instance, the difference between mandatory appellate jurisdiction in the Supreme Court for all cases in which a government, government agency, or government official appeals to the Court from any adverse constitutional ruling or, instead, just from any adverse constitutional ruling about, say, the Establishment Clause. 

Insofar as history provides a guide, the lesson seems pretty clear that agenda-setting authority at the Supreme Court has contributed to the expansion of the domain of federal constitutional law. As Edward Hartnett has powerfully argued, the Supreme Court may not have constitutionalized state criminal procedure (among other areas) if the result of doing so would have been a massive increase in the Court's workload. While the transformation of the Supreme Court and its role in American government that took place last century had many causes, one undeniably important change was the expansion of the Court's discretion to decide or decline to decide that took place with the Judiciary Act of 1925. (Reading Hartnett's article on that legislation crystallized for me the worth of considering the potential effects of jurisdiction stuffing.) 

There is no going all the way back, of course, nor should one want to. The Supreme Court unquestionably needs some measure of discretion in case selection. But they probably have too much discretion right now. And one way to stop the Justices from going where they ought not to go as a matter of substantive constitutional law is to force them to move faster if they are to move at all. In at least some doctrinal areas, the Court can run at the same pace their decisions set for other courts. And they should have to; they are supreme, but they are also still a court.

February 4, 2015 in Walsh, Kevin | Permalink

Monday, January 26, 2015

Some resources on death-qualified jurors and Catholic teaching

One of the surprises of my first year of law school was learning that my real but still tentative faith-based opposition to the death penalty might prevent me from serving on a jury in a capital case. The idea of a death-qualified jury clashed with my notion of a jury of one's peers.

I've come to learn that an adherent to current Catholic teaching on the death penalty would not necessarily be excluded from a death-qualified jury. But I remain troubled about the idea of death-qualifying a jury.

In looking into various issues raised by our system's allowance for death-qualification of jurors, I recently came across a helpful list of resources compiled for the 2004-2005 Catholic Lawyer's Program sponsored by the Institute on Religion, Law, and Lawyer's Work at Fordham Law, "Catholics and the Death Penalty: Lawyers, Jurors, and Judges." Materials available online include a Foreword by Amy Uelmen, an essay by Gerald Uelmen, and the transcript of a discussion between two Catholic lawyers with prosecution and defense experience in capital cases. I recommend the essay by Gerald Uelmen in particular. 

January 26, 2015 in Walsh, Kevin | Permalink