Mirror of Justice

Thoughts on Catholic Diocese of Brooklyn v. Cuomo

I believe that the biggest threat we face as a nation is the growing political polarization that makes it very difficult to collaborate on the many pressing problems we face. One of the dimensions to this polarization is an overly simplistic perception that the Supreme Court is divided between “good” justices and “evil” justices, with those designations contingent solely on our political leanings. New rulings are weaponized by opposing camps and deployed in ways that lend further support to the good-versus-evil characterization.

 

With that preamble, I’ll offer an admittedly cursory, non-technical explanation of Wednesday night’s 5-to-4 Supreme Court ruling blocking enforcement of Governor Cuomo’s restrictions on attendance at religious services in New York. The majority’s analysis was not driven by an utter disregard of public health, and the dissent’s analysis was not driven by hostility toward religious liberty. There were two primary differences between the justices who joined the majority and those who wrote in dissent:

 

1) Timing: At the time of the ruling, the religious bodies objecting to the regulations were no longer subject to the rules that were the focus of their suits because the surrounding communities had shifted to less restrictive classifications based on COVID test positivity rates. The majority decided that this change did not make the case moot, as they could shift back to more restrictive classifications at any time. The dissenting justices believed that the Court should hold off on second-guessing public health authorities unless and until the conflict is real and pressing. (This is the reason that caused Chief Justice Roberts to dissent.)

 

2) Substance: Every justice agrees that, under the Constitution, the government cannot treat religious exercise worse than comparable secular activities. In the majority’s view, the fact that nearby liquor stores, acupuncture facilities, grocery stores, and bike shops could operate at full capacity while churches and synagogues faced restrictions suggests that Governor Cuomo’s order is constitutionally problematic. In the dissent’s view, the fact that lecture halls, concert venues, churches, and synagogues are all subject to the same occupancy restrictions suggests that religious exercise is not being disfavored. The justices disagree about the appropriate points of comparison.

 

When it comes to the operative background principles, there is much more consensus on the Court than most Americans would guess based on its portrayal in our political culture. To be sure, there are meaningful differences in justices’ views about how the Constitution should be interpreted. These differences matter. But each justice is committed to the rule of law and is doing their best to navigate very thorny issues.

 

The business model of the companies driving our economy, and the vote-boosting model of our elected officials, is based on drawing and keeping our attention, and polarization is a great engine for doing this. It is not healthy or helpful to take a clickbait approach to the rule of law – it’s not all a grand battle of good versus evil. We still have plenty to debate when it comes to Supreme Court rulings, but let’s be precise and particular when we disagree.

Christ the King and "Quas Primas"

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

The Trump campaign's assault on social trust

I don’t need to add my voice to the hundreds of experts who are explaining in detail why the Trump campaign’s claims of nationwide “election-stealing” fraud are demonstrably false and corrosive to democratic norms.  I write to point out an additional dimension to the claims’ toxicity: they are direct and calculated assaults on the trust Americans place in their neighbors.

It is one thing to build conspiracies around George Soros, Bill Gates, or other distant figures.  The election fraud conspiracy theory being trumpeted by the Trump campaign, though, is fundamentally about hard-working, civic-minded Americans in the communities we call home.  As (conservative) Jim Geraghty explains in the (conservative) National Review:

[T]he contention of the Trump campaign’s lawyers is that the outcome of the 2020 presidential election was rigged by a conspiracy of multiple voting-machine-software companies, poll workers across the country, local and county election officials in multiple key states, various secretaries of state, state attorney generals, governors including Republicans, law enforcement at all levels, the Department of Homeland Security, and every judge who has ruled against them so far. Oh, and almost everyone in almost every form of media who covers elections, presumably including me.

Conspiracy theories focused on distant celebrities are nothing new – the belief that Nero set fire to Rome in order to further his political agenda is an early example.  Today’s Q Anon claim that Tom Hanks leads a global pedophile ring may be laughable, but it has little impact on our day-to-day lives.

The Trump campaign’s conspiracy story is different.  It seeks to sow mistrust in our local communities.  The folks who have long earned our respect by getting up before dawn to help run polling sites are now implicated in a global scheme that encompasses Hugo Chavez and Antifa. 

This should be especially troubling for Catholics, who -- in keeping with the premise of subsidiarity -- have long championed the empowerment of local communities as essential to our nation’s flourishing.  If we believe that the common good is realized from the bottom up and not imposed top down, we need to be very careful stewards of the trust on which our civic life depends.    

I am familiar with the court pleadings, and there has been nothing filed to support the outrageous conspiracy claims being made in press conferences and on social media.  I’m sure that there were isolated instances of misconduct or mistake in this election, as there are in every national election.  But that’s not what the Trump campaign is claiming.  If the Obama campaign had made similar claims in 2008 or 2012, conservatives would have been outraged, and they would have rallied to defend the thousands of Americans whose honesty and integrity make our election system work.  They would have correctly recognized that the stakes are much greater than the outcome of an election.  Now is the time to speak up.

Will Fr. James Martin, S.J., explain or withdraw his assertion that Justice Barrett voted "in defiance of Catholic pro-life teaching"?

Speaking of Twitter as an occasion or near occasion of sin, I see that I have not been the only one who has posted intemperately or injudiciously about the 6-3 order vacating the stay of execution for Orlando Hall. Fr. James Martin, S.J. singles out Justice Barrett's vote as made "in defiance of Catholic pro-life teaching." (See below.)

This is a grave charge. Will Fr. Martin explain his assertion or will he withdraw it? 

What Catholic pro-life teaching forbade any of the Justices from vacating the district court's injunction? Did Fr. Martin even look into or try to understand the legal merits of the claim at issue?

According to SCOTUSBlog, the district court's injunction was based on the federal government not having a prescription for the lethal dose of sodium pentobarbital that it was to administer, which prescription is purportedly required by the federal Food, Drug, and Cosmetic Act. The federal government "argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs. It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription." Justice Barrett (along with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kavanaugh, and Justice Gorsuch) apparently agreed with the government and voted accordingly. 

ACB & Garvey on Catholic Judges in Capital Cases

The short reading for morning prayer today was Ephesians 4:29-32:

Guard against foul talk; let your words be for the improvement of others, as occasion offers, and do good to your listeners, otherwise you will only be grieving the Holy Spirit of God who has marked you with his seal for you to be set free when the day comes. Never have grudges against others, or lose your temper, or raise your voice to anybody, or call each other names, or allow any sort of spitefulness. Be friends with one another, and kind, forgiving each other as readily as God forgave you in Christ.

Reflecting on this reading made me go back and delete a reply I had sent earlier that morning on Twitter. And this was all after I had apologized for misunderstanding another person's posts about the same topic. So perhaps I'll lay off Twitter when it comes to responding to people criticizing Justice Barrett as having violated her faith by voting to deny relief in a federal execution. But some response remains warranted. So here it is.

Let's begin with how serious an accusation it is to assert that someone has violated her faith and well-formed conscience. The gravity of such a charge is not a decisive reason against leveling it. But it is reason to make sure one knows what one is talking about in doing so. 

In this case, that is easy enough because Justice Barrett has done more than any other Justice to explain how she understands the relationship between Catholic teaching on the death penalty and what role Catholic judges may play in a legal system that imposes and carries out such sentences. That explanation appears in Catholic Judges in Capital Cases, 81 Marquette Law Review 303 (1998), co-authored with John Garvey. 

I know from personal experience how helpful this article can be for thinking through the challenging issues that confront anyone who participates in some way in a legal system that carries out the death penalty even while believing the punishment immoral in almost all circumstances in which it is imposed in society today. I'm one of those people. And there are a lot of us.

I had to think about it when handed my very first case as a judicial clerk in my first job out of law school. It was a capital case with something like 17 issues, resulting in a bench memo of over 70 pages. (I was new and very much in need of an editor.) Because many recent law graduates serve as law clerks, and many jurisdictions impose the death penalty, every year there are law clerks in the same situation I found myself in. And when I can, I try to point them to this ACB/Garvey article. This is not because it answers every question one might have about every kind of cooperation with evil one might encounter. But it is careful, thorough, and attentive to orthodoxy.

Some of Justice Barrett's casual critics have clearly not done the reading. Which is a shame because one can learn a lot by engaging the Barrett/Garvey analysis on its own terms. In some places, the authors' conclusions are appropriately tentative and tempered by an awareness that not all circumstances can be accounted for properly simply by categorizing, for example, guilt phase vs. penalty phase, trial vs. appeal vs. collateral review. Roughly speaking, though, Barrett & Garvey conclude that Catholic judges "may sit on the guilt phase of capital cases--provided they withdraw before sentencing. They may handle appeals challenging convictions and (perhaps) even sentences. They may also engage in collateral review of cases where the defendant was sentenced to death." 81 Marq. L. Rev. at 345.

I won't repeat their analysis here, but will add only that by the time that any capital case gets to the Supreme Court, it has either already been through multiple layers of review, or there is some procedural bar if the claim is relatively new. The extent of material cooperation in such circumstances is thus typically lower than even the typical appellate or collateral review. 

There is a danger of scandal, though. And this is another reason why Catholics who really ought to know better should be sure they understand what they're talking about before they risk contributing to scandal with casual condemnations of alleged infidelity to one's well-formed conscience.

Spain’s bishops meet as religious freedom threatened in the country

With the U.S. Conference of Catholic Bishops holding a virtual fall assembly, the bishops of Spain are also holding their fall gathering.

On the agenda for the Spanish bishops are Europe’s rising populist currents, and a bill in Spain that threatens religious education.

Full story at Crux: https://cruxnow.com/church-in-europe/2020/11/spains-bishops-meet-as-religious-freedom-threatened-in-the-country/

One Christian’s Fallible Thoughts on the Lessons of (and Warnings from) the Election for People of Faith on Both Sides

To my faithful friends and family of who voted for the losing candidate:

“[Biden’s] victory caused people to weep in joyful relief as they became aware of the heaviness that had afflicted their hearts, after they’d suddenly been relieved of it.”

The words above express what so very many of us felt when the presidential election was finally called days afterward. I myself was startled to find tears forming in my eyes when I knew for certain that the Trump presidency was now in its last days. I truly felt like a heavy weight had been lifted off my chest.

I do understand that those who voted for President Trump had a very different emotional reaction after his defeat: grief, anger, fear, denial. I do wish to extend sympathy toward Trump supporters with their deeply felt disappointment. I have always sought to understand in a sympathetic way why so many of my brothers and sisters in Christ reached a decision to support this man, who I saw as so undeserving of their faith (and I speak more of what I think I’ve learned in my words to Biden supporters below).

But in the interests of understanding each other in the community of Christian faith, I do ask those who voted for Trump to take a moment and try to understand (and perhaps even find empathy for) why so many of us felt intense relief that we would not be experiencing another four years of this presidency. Can you appreciate the wounds that so many Americans felt from the hostile words, blizzard of insults, and unceasingly childish behavior of the man in the White House?

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Rowan Williams on “Saving our Order: Thomas Becket, Henry II and the Law of Church and State”

A public lecture to mark the 850th anniversary of the murder of Saint Thomas of Canterbury.

The Ecclesiastical Law Society, in association with Villanova University, Notre Dame Law School, and the Dean and Chapter of Canterbury Cathedral, extend a warm invitation to this special lecture.

Registration link: https://ecclawsoc.org.uk/events/rowan-williams/

The Italian James Burnham

I want to call a little attention to this new monograph by Professor Lorenzo Castellani, L'ingranaggio del Potere ("The Gear of Power"). The book is
just published and it is in Italian. But it intervenes insightfully in debates about political power that ought to be of great interest to American and British scholars of administrative law, though its primary focus is on "Eurocracy." 

The book is a sweeping study (in just a few pages)--a history of ideas or, as he puts it in an early chapter, an analysis of the "real thing"--of how "competence" and "technical expertise" has come to dominate our political world. It helpfully contrasts the realms of "politics" and "policy." While we often think of these as united, or even one and the same, Castellani distinguishes them, locating the latter squarely as the province of the experts and not really about democratic politics at all. But policy has "hidden itself" well as derived from politics in modern democratic societies. The thesis: "In advanced modern societies, the principle of aristocracy has a much greater weight in the organization of those societies than we are commonly led to believe or admit. In contemporary democracies, this aristocratic element is based on competence--that is, on the specialized knowledge of individuals supplied and certified by the structure itself through educational institutions, programs of study, titles, exams, and competitions. This aristocratic-hierarchical principle exists together with the democratic-representative principle from which, in recent decades, it has progressively eroded significant spaces." (25)

If this sounds in some ways reminiscent of James Burnham's early work in The Managerial Elite, it is. Indeed, I think Castellani has taken on a good deal of Burnham. But the applications he sees in Burnham's work (and the work of others including Daniel Bell) for the "techno-democracies" that rule us now, and that are nevertheless the subject of such controversy, are fresh and insightful.

American publishers take note! This book deserves a good English translation. It has a lot to say to Anglo-American concerns today.

Skelly Oil in California v. Texas?

This morning's oral arguments in California v. Texas will put on display the Justices' conceptions of their individual judicial role, the Court's role, and the role of the federal courts more generally. One feature to look for is the way that the Justices think about how "judicial review" operates.

The quasi-legislative conception of judicial review that now seems well ensconced was something of a late arrival, emerging in the late nineteenth century. An earlier understanding focused more on refusing to give effect judicially to unconstitutional law. On this traditional understanding, the judiciary did not do anything to an unconstitutional law; it performed no operation, no striking down.

The whole framing of severability, however, presupposes the more modern understanding of judicial power vis-a-vis unconstitutional laws. Within this quasi-legislative conception, an excision-based understanding of judicial review asks whether the Court can surgically remove an offending aspect of the law without ruining the rest of the law. 

While severability is of deep interest, my ears will perk up more if there is discussion of justiciability. There is an unfortunate tendency in recent decades to flatten out Article III justiciability to focus on standing to the exclusion of other ways of thinking about what makes a "case." The amicus brief that I teamed up to file with Michael McConnell, Sam Bray, and Raffi Melkonian provides another way of getting at the absence of a true case here. Its basis seems like a very narrow doctrine about a case interpreting the Declaratory Judgment Act. But that is only on the surface. Foundationally, the Skelly Oil doctrine operates in a situation like this to avoid the provision of an advisory opinion. Here's to hoping this line of analysis receives some attention.

Notre Dame Program on Church, State & Society Writing Competition

Just a reminder that we have a writing competition open to all students enrolled at US law schools. Our deadline is February 15th, 2021.

Details here: https://churchstate.nd.edu/home/notre-dame-program-on-church-state-society-writing-competition/

SCOTUS foster agency case presents important questions on balance between religious freedom

The Supreme Court of the United States heard arguments Wednesday (Nov. 4) in Fulton v. City of Philadelphia, a case that “presents timely and important questions about the Court’s First Amendment doctrines and the balance between religious freedom and antidiscrimination laws,” according to Notre Dame Law School professors Stephanie Barclay and Richard Garnett.

Full article at ND News: https://news.nd.edu/news/scotus-foster-agency-case-presents-important-questions-on-balance-between-religious-freedom-and-antidiscrimination-laws-experts-say/

1st Circuit Upholds Exclusion of "Sectarian" Schools

... In a panel opinion joined by David Souter (ret.), sitting by designation. Maine provides that rural students who can't access a public school can have tuition paid at a private school, but not if it's "sectarian." The CA1 permitted this, despite Trinity Lutheran Church and Espinoza, on the ground that the definition of "sectarian" means that a school (and the parents' choice of it) is disqualified from eligibility not simply because the school is religiously affiliated (religious "status"), but because the funds will be used for activity that includes religious teaching (religious "use").

That issue was formally reserved by Trinity Lutheran and Espinoza: the  Court wrote the opinions in a way that allowed a lower court to do this if  so inclined. But the status/use distinction won't, and shouldn't, hold up ultimately. For one thing, "use" for religious teaching is also religious exercise (as Justice Gorsuch has emphasized throughout). For another, denying the entire tuition benefit--which supports education of full secular value--because there's religious teaching mixed in ends up denying it based on religious character/status. The distinction collapses, as Gorsuch has also said. Doug Laycock and I have laid out these arguments fully in an Espinoza amicus brief and a new article just published in the Journal of Law and Religion.

 

It seems very likely that a majority of the Court would view the CA1 ruling as appropriate for reversal. The question is whether they want to revisit the issue so soon after Espinoza.

 

The CA1 opinion also has a striking argument that the state is paying for the equivalent of a public education and the essence of a public education includes there being no significant religious element--therefore only secular private schools should be eligible. Although the state places some baseline accreditation-type regulations on the qualifying private schools, it doesn't appear to place major regulations that ensure they're truly like the public schools. They just can't teach religion.

 

There is an argument out there, with very broad consequences, that even funding public schools only--and no private schools--discriminates against religion because part of the definition of a public school is that it can't have religion in its teaching. It's almost like the CA1 panel wants to drive the Court toward that argument.

Justice Barrett, judicial departmentalist

Although much has been made of Justice Barrett's originalism, it is more likely that her judicial departmentalism will matter much more. More specifically, I believe that Justice Barrett's Judicial departmentalism will be more important than her originalism in each case in which it matters, and that her judicial departmentalism will be operative in more cases than originalism will be. 

Judicial departmentalism is best understood by way of contrast with judicial supremacy. Conventionally, judicial supremacy is the position that the Constitution means for everybody what the Supreme Court says that it means in resolving a case or controversy. Judicial departmentalism, by contrast, is the position that the Constitution means in the judicial department what the Supreme Court says that it means in resolving a case or controversy. Instead of treating judicial departmentalism as an alternative to judicial supremacy, then, we could also treat it as a form of bounded judicial supremacy. The boundaries around Supreme Court authoritativeness are the boundaries around the judiciary.

There is an affinity between originalism and judicial departmentalism insofar as originalism provides an account of what the Constitution means that does not necessarily depend on looking to what the Supreme Court has said. Originalism can therefore provide a reference point for determining whether existing judicial doctrine underenforces or overenforces the Constitution in a variety of ways. As I have previously argued, "[c]onstitutional originalism provides a standard outside of the Supreme Court's doctrine but inside the law that enables one to see how legislation may appear to overenforce when measured against judicial doctrine, but actually does not, because the judicial doctrine underenforces the Fourteenth Amendment as assessed from an originalist perspective."

Justice Barrett's prior academic writings do not explicitly adopt judicial departmentalism. But the concept is relatively new and still somewhat obscure. I first presented the idea publicly at a symposium at William & Mary Law School that I then left early to attend Justice Scalia's funeral. But Justice Barrett's prior academic writings reveal an openness to judicial departmentalism. And Barrett joins the Court after having studied the history and limits of the federal judicial power in greater detail than any other current Justice had studied it prior to joining the Court. 

Barrett's scholarship recognizes limits on the authoritativeness of the Supreme Court's say-so in a variety of ways. For example, her scholarship supports skepticism that the Supreme Court possesses inherent supervisory rulemaking authority over other federal courts. And even more importantly, Barrett has explicitly distinguished originalism as a theory of law from originalism as a theory of adjudication. Because of this important and well-founded distinction, judicial implementations of originalism must always remain open to influence by some normative theory of adjudication in addition to a descriptive or prescriptive theory of law. And judicial departmentalism is a component of both a theory of law and a theory of adjudication. There is therefore very good reason to think that Justice Barrett will understand her role on the Supreme Court in self-consciously judicial departmentalist terms. This would provide a welcome contrast with the unselfconscious and often inconsistent judicial supremacy one more commonly encounters.

Justice Amy Coney Barrett

I share the joy of so many of my colleagues across MOJ-world upon the confirmation of Justice Amy Coney Barrett. As those of us who know her could attest and now the country has seen, Justice Barrett is a remarkable combination of intelligence, generosity of spirit, and judicial temperament. The nation is fortunate indeed to have such a person in high office.

I participated recently in a podcast (available here) about Justice Barrett's confirmation hearing hosted by the National Constitution Center with Kate Shaw from Cardozo and moderated by Jeff Rosen, the President of the NCC. I was also on a webinar (available here) about the Supreme Court hosted by the Union League of Philadelphia with Michael Gerhardt from UNC-Chapel Hill, who served as a special counsel to Senator Dianne Feinstein (D-CA) for the confirmation hearing.

One last note about the confirmation process over the past few weeks and civil discourse. Notwithstanding the efforts of some to attack Justice Barrett personally and reprise the confirmation hearing for her nomination to the Seventh Circuit, Senate Democrats focused their opposition to Justice Barrett on the forthcoming case about the Affordable Care Act—figuring (probably correctly) that a big culture war fight over Justice Barrett's faith might be catnip for the progressive left but politically detrimental for Democrats. And while opposition to Justice Barrett’s confirmation on the basis of the ACA case is legally fatuous, it at least had the marginal benefit of highlighting differences in judicial philosophy and the separation of powers between Congress and the courts.

Congratulations to Justice Amy Coney Barrett

I am delighted that my dear friend, neighbor, and colleague has been confirmed to the Supreme Court of the United States.  (Note to media-types:  It's not called "the United States Supreme Court.")  Here's the ND announcement.  (One hopes that more appropriate celebration and commemoration will be coming from the University soon.)  As I wrote here, a few years ago:

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.

I'm very pleased that neither our dysfunctional politics nor the strange obsessions of a few theologians were able to prevent this welcome development. Warm congratulations to the justice.  

Happy Pope St. John Paul II Day!

NCR's Uninformed and Misguided Attack on Judge Barrett

In this staff editorial, the National Catholic Reporter team advances the strange notion that Judge Barrett's nomination should be rejected because of her alleged "moral relativism."  (The charge is strange, in part, because it circulates with another set of wrongheaded attacks on Barrett, i.e., those that claim she will aggressively impose "her morality" on others and on legal questions.  Chesterton would enjoy this spectacle, I guess.)

To paraphrase the wise Inigo Montoya, that word does not mean what the NCR writers think it means.

Contrary to the editorial writers' charge, there is nothing "morally relativistic" about, e.g., declining to answer unlettered senators' bad-faith questions having to do with their various hobby-horses (Dark Money! The Shadow Docket!) or about political figures, policy questions, and matters that are, or are very likely to be, the subject of litigation. All nominees decline to answer such questions and -- although there is room for disagreement at the margins -- this declining is generally required by judicial-ethics canons. Barrett never suggested that the questions she was declining to answer do not have answers, or that the answers to them do not matter. She (quite appropriately, even if it interfered with the senators' made-for-TV antics) simply noted that it's not appropriate for a judicial nominee to answer them.

In addition, the NCR editorial echoes and proposes a common mistake, namely, that it is somehow "relativistic" for a federal judge to insist that federal judges are not authorized or selected to supply the law's moral content or to resolve moral disputes. (Justice Scalia was also often on the receiving end of this kind of thing.)  A judge with the judicial philosophy that Judge Barrett espouses does not think that "morality is relative", or that it doesn't matter if our laws reflect sound morality or not, or that it is not important that the correct answers be supplied to moral questions. Such a judge simply thinks, again, that politically accountable actors (this side of Heaven) are those best and most legitimately situated to make the trade-offs, compromises, and close-calls that human law-making necessarily involves and that the job of a judge is to try to figure out which calls the politically accountable actors actually made.

Now, the NCR piece is unsigned, but it is consonant, in themes and in tone, with some claims that NCR's Michael Sean Winters has been advancing for years -- about "originalism", constitutional interpretation, etc. -- and that are also, in my view, mistaken. Among other things, Winters seems to think that "originalists" adopt the interpretive methodology they do because of some imagined moral authority or superior character possessed by the "Founders" or by the Founding generation, many of whom, Winters will sometimes remind us, were anti-Catholic. Yes, many were. But, of course, the case for "originalism" has nothing to do with these actors' character and insight. It is much more prosaic:  In a democracy, the judicially enforceable content of positive law is fixed by the understanding of those who enacted the law. To depart from that understanding is to re-make law and, when federal judges do that, they are acting outside of what We the People authorized them to do authorization. 

Back to the NCR anti-Barrett editorial:  It states (among other things), "[i]n her commitment to originalism and textualism, she claims not to be interpreting the law or the Constitution at all." This is quite odd. The entire point of interpretive methods (other than the "do what you think is right for those litigants you find most sympathetic" method that the editorial writers appear to endorse) is that they are methods of interpretation. The aim of these methods is to identify the semantic and judicially enforceable content of positive law.

Judge Barrett should, and I hope will, be confirmed. I know her well, and admire her a great deal. It is disappointing that, regardless of its opposition to the nominating president or its frustration with the state of our judicial-nominations process, a Catholic periodical would push such implausible lines of attack.

UPDATE:  A longtime reader and MOJ-friend writes in, with this:  "It is ironic that the National Catholic Reporter would attack the notion that whatever else a text does, it has a meaning within the context that it is written, a meaning that can be discerned by careful historical scholarship, a meaning that is particularly important to discern in a text that bears upon how we conduct our lives today.  After all, the entire field of contemporary historical biblical studies is based upon that thesis."

Judge Amul Thapar to guest lecture at Notre Dame Law School

Notre Dame Law School's Program on Church, State & Society is pleased to welcome Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit as a guest lecturer the week of October 26.

Judge Thapar will teach alongside Program Faculty Director and Paul J. Schierl/Fort Howard Corporation Professor of Law Richard Garnett in a Freedom of Religion seminar course offered to a select number of Notre Dame Law students. Thapar will also meet in small groups throughout the week with first-year law students affiliated with the Program on Church, State & Society.

https://law.nd.edu/news-events/news/judge-amul-thapar-to-guest-lecture-at-notre-dame-law-school/

 

Ending the Train-Wreck Presidency (or Why I'm Voting for Biden)

In my professional life, I have not been reticent to express my opinions on matters of the law and legal reform, taking clear and I believe well-informed public positions on matter of public policy.  In my personal life, I have not been quiet in expressing my political views, including judgments about candidates.  (And in expressing political opinions here, I of course do so in my personal, academic, and professional capacity, not on behalf of my Mirror of Justice colleagues or speaking for the University of St. Thomas.). My colleagues, professional associates, family, and friends know where I stand on major issues:

• I believe in robust protection of religious liberty, including the right of individuals, religious schools, and churches, mosques, and synagogues to express religious views and exercise religious practices that may not be in vogue with the cultural elite.

• I believe that educational choice — including (especially including) religious schools — is one of the most powerful engines for progress, equal opportunity, and racial equity.

• I believe that the right to life of the unborn should be recognized as a compelling civil rights cause.

• I believe that people in urban areas, as well as suburban or rural, have a right to be safe from violence, whether safety is endangered by racist police subcultures and unnecessarily militaristic practices or by foolish calls to defund and abolish the police.

• I believe that law-abiding citizens have a constitutional right to own a gun for self-defense or sport and am a gun owner myself.

• I believe in freedom of speech and defend it against threats by self-righteous intolerant persons in the cultural elite of academia, media, and government or elsewhere in society.

• I believe that socialism is a dangerous ideology with a long history of destroying economic prosperity and undermining liberty throughout the world.

• And I believe that government and politicians are as often the problem as the solution, so that we often (not always, but often) are better advised to look for community-based partnerships for the common good.

I understand and respect that most people who share all or most of the beliefs that I have just articulated will find it difficult or impossible to support Joe Biden for president.  They instead find themselves, even with grave misgivings, forced to the conclusion that President Trump is the lesser evil in this election.  I love many people and know and appreciate others who, while acknowledging the grave flaws in this disordered man and saddened by the choice, will reluctantly cast a vote for Donald Trump.  And I know others who conclude the only alternative is not to vote for president or to cast a protest vote for a write-in or third-party candidate.

But I submit these conclusions are badly mistaken at this moment in history.  The greater good, the higher priority right now is to bring an end to this train-wreck presidency.

I do not think that religious liberty, free enterprise, educational opportunity, public safety, or the right to life of the unborn are at all safe in the insecure hands of this president.  Indeed, I fear that the principles that I hold most dear are endangered in the long run (and not so long run) by being so closely associated with this toxic figure.

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Wajahat Ali: If Amy Coney Barrett Were Muslim

In today's New York Times, Wajahat Ali wrote a column titled, If Amy Coney Barrett Were Muslim. Drawing parallels with Judge Barrett's Catholic background and experiences, Ali points to the scurrilous and bigoted comments made by many on the right about Muslims in public life. While I am disappointed that he compromised the strength of his argument by ending with a political attack on Judge Barrett's judicial philosophy (confirming leftist bona fides is apparently obligatory these days at the New York Times), Ali's column strikes me as a sadly fair description of hypocrisy and anti-Muslim antipathy among many Americans, including those who claim to care about protecting religious faith.  Ali's column should be read by every faithful Catholic, both to be reminded of the importance of a robust understanding of religious liberty and to stand in solidarity with our Muslim brothers and sisters when they suffer bigoted attacks and ignorant attitudes.

 

 

Dignitarian Feminism on National Public Radio, and more

Yesterday, I had the opportunity to discuss what I call "dignitarian" feminism on NPR's On Point with host Meghna Chakrabarti and Fatima Goss Graves of the National Women's Law Center. Here's the audio. I spoke about a similar topic with the Catholic Association's lovely Grazie Christie on their podcast, Conversations with Consequences.  Grazie and I also gushed for a bit about the brilliance, generosity, and humility of Judge Barrett. (By the way, if you haven't listened to the episode with Adrian Vermeule and Patrick Deneen, I'd highly recommend it.)

And here's a very short piece I have up at CNN this AM on the first day of the hearings:  "One cannot help but conclude by the actions on the part of the Democrats on Monday that the case against confirming Judge Barrett is a very poor one, indeed. Let's face it: Her qualifications are impeccable, her originalist philosophy now quite mainstream, and her dispassionate and self-possessed temperament the very best one could hope for in a judge."

 

Judge Barrett on Stare Decisis and Methodological Disagreement

I have an essay at First Things that lays out my understanding of what Judge Amy Coney Barrett has written about stare decisis and the fact of methodological disagreement in constitutional interpretation. The essay in part aims to correct this grossly misinformed and error-saturated piece published at Commonweal. But in much larger part, it tries simply to do justice to Judge Barrett's view in her scholarly work. A bit:

Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means. 

For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.” 

As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it. 

Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.” 

This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.

Braver Angels: "What We Will Do to Hold America Together"

Braver Angels, a diverse group of people of different backgrounds and political beliefs, strives to bring America together and help move us in a united way toward the common good.

"What We Will Do to Hold American Together" is a public letter speaking to unity in these divided times.

You can read -- and sign -- the letter here.

My Letter to Michael K. Young, President of Texas A&M, in support of the Academic Freedom Rights of Professor Wendy Leo Moore

Dear President Young:

I am a professor of jurisprudence at Princeton University and a scholar who has devoted a great deal of effort to the cause of protecting academic freedom. I myself happen to be a political conservative—an outspoken one. I believe that principles of academic freedom, properly understood, equally protect members of college and university communities (faculty and students alike) irrespective of their political stances or commitments.

My purpose in writing is to urge that the academic freedom rights of Professor Wendy Leo Moore be strictly respected and that no disciplinary action be taken against her for participating in the so-called scholars strike for racial justice. I understand that a memo was circulated in advance of that activity informing faculty that their participation would be deemed a violation of a Texas laws prohibiting strikes by state employees. It seems to me, however, that the so-called strike (with which I myself was not in sympathy) was not the sort of work stoppage contemplated by the laws, or the sort of action that laws could prohibit without running afoul of basic principles of academic freedom. On this score, some of the points made by Jonathan Friedman of PEN America’s campus free speech program seem valid—and compelling—to me.

We live at a time when the academic freedom rights of politically conservative students and professors are frequently violated, or are improperly narrowly interpreted, on campuses around the country. In Professor Moore’s case, however, it is a person on the left end of the ideological spectrum whose rights are under threat. Just as progressives should be speaking out in defense of the rights of conservatives when they are dishonored, conservatives should join in defending the rights of people on the left when their rights are in jeopardy. As I noted, principles of academic freedom, correctly understood and applied, equally protect people of any and all political persuasions. Hence I am writing to add my voice to those asking you to honor fully Professor Moore’s rights to academic freedom.

Yours sincerely,

Robert P. George