Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, October 12, 2021

Oral argument yesterday a glimpse of Supreme Court's post-Roe abortion-law docket

The Supreme Court heard oral argument yesterday in Cameron v. EMW Women's Surgical Center. The case involves the constitutionality of a Kentucky law regulating abortion. But abortion barely came up at all. That's because the question presented has nothing to do with the constitutionality of the Kentucky law at issue. The question, instead, is about the ability of Kentucky's Attorney General to intervene and defend the law further after a different state official declined to press the defense any further. 

One way to think about yesterday's argument is as providing a glimpse of what the Supreme Court's post-Roe abortion-law docket might look like.

If the Supreme Court reverses the Roe/Casey regime, the Court will still hear cases that involve abortion laws. But those cases will not be about first-order questions of personal autonomy. They will instead be about the scope of Congress's power to regulate commerce, choice of law questions, and so on. They will implicate trans-substantive bodies of doctrine rather than adding to the accumulation of abortion-specific caselaw.

 

October 12, 2021 | Permalink

Sunday, October 10, 2021

Indigenous Peoples' Day

I don’t have family roots in Minnesota, with one exception: during the 1940s, my grandfather was the manager of the Firestone store at 1107 Harmon Place in Minneapolis – i.e., the future site of the law school where I serve as dean. That very modest historical connection to the land where I work today can be a source of encouragement during hard days. Whatever I’m dealing with, it’s helpful to imagine the perseverance of my grandfather, plucked from Ohio to a strange new city and tasked with selling tires in the face of wartime rubber rationing.
 
Of course, in the long history of human beings living and working here, my roots through that Firestone shop are very shallow. This land was not a significant part of my story, or of my family’s story. Our language, religious practices, and way of life stayed intact when my grandfather was transferred to another store in another state.
 
Tomorrow is Indigenous Peoples’ Day, when we celebrate and reflect on the many Indigenous communities and cultures that have shaped our nation. One way we do that is by caring about – and being honest about – our history, including the history of the land where we live and work today. St. Thomas Law is on what was Dakota land until that land was ceded to the United States through the treaty of 1851. That treaty called for the payment to the Dakota of what amounted to 12 cents per acre. Treaty negotiations were driven by the American Fur Company, which had been providing supplies to the Dakota in exchange for fur. As the lands were overhunted and European demand for fur dropped, the system collapsed and the Dakota were left owing huge debts to American Fur. Debt payments (inflated by the company) were taken out of the land proceeds before anything was given to the tribe. Essentially, the fur traders were bailed out by the U.S. government, the U.S. government got 24 million acres of land, and the Dakota got almost nothing. This was all made possible by the strategist behind the arrangements: Henry Sibley, who was a partner and agent of the American Fur Company, the future governor of Minnesota, and a lawyer. We need to know these stories.
 
Like just about everything else in our country today, the choice to celebrate Indigenous Peoples’ Day rather than Columbus Day is itself a political minefield. It’s worth pointing out, though, that even the older holiday’s creation emerges from injustice. As Italian immigration to the United States increased in the late 1800s, so did persecution of the new arrivals. In 1891, anti-Italian sentiment boiled over in New Orleans, and a mob broke into the jail, where they beat, shot, and hanged 11 Italian-American prisoners. The Italian government called for reparations and cut off diplomatic relations. In an attempt to appease Italy, in 1892 President Benjamin Harrison proclaimed a “Discovery Day,” recognizing Columbus as “the pioneer of progress and enlightenment.”
 

We are stewards of the rule of law, and that means we also have to be honest and unflinching students of our history.  Under the gaze of previous generations, what does it mean – what should it mean – to be called to help form the next generation of lawyers and leaders?  Are we being faithful to the witness of those who came before us?

October 10, 2021 in Vischer, Rob | Permalink

Saturday, October 9, 2021

Podcast on Religious Exemption From the New York COVID Vaccine Mandate

Mark Movsesian and I discuss a set of challenges on the basis of religious scruple to the recently imposed New York COVID vaccine mandate in this new podcast.

Along the way, we chat about some of New York Governor Kathleen Hochul's recent remarks that "[t]here are not legitimate religious exemptions because the leaders of all the organized religions have said there's no legitimate reason." Also: "I'm not aware of a sanctioned religious exemption from any organized religion"; and, "In fact, they are encouraging the opposite. Everybody from the pope on down is encouraging people to get vaccinated." As it happens, Mark and I have expressed some sympathy, in different fora and for somewhat different reasons, for this general position as respects religion's legal definition. But on the existing doctrine, it may run into some problems.

October 9, 2021 in DeGirolami, Marc | Permalink

Friday, October 8, 2021

Revisiting the “Separation of Church and State” in Our Time of Deep Division

Religious freedom does not matter because the Constitution protects it; instead, the Constitution (like modern human-rights law) protects it because religious freedom matters. It is not a gift from the government; it is a limit on the government. Every person, because he or she is a person, has the right to religious liberty—to embrace, or to reject, religious faith, traditions, practices, and communities. This freedom is enjoyed by, and is important to, religious believers and nonbelievers alike. Religious freedom, protected through law, helps both individuals and communities to flourish. It protects the “private” conscience and also promotes the “public,” common good. Religious or not, devout or not, we all have a stake in the religious-liberty project, and in the success of what Thomas Jefferson called our First Amendment’s “fair” and “novel” experiment.

This article is based on Constitution Day remarks Garnett delivered on September 23, 2021, at The Citadel in Charleston, South Carolina.

Full text: https://www.religiousfreedominstitute.org/cornerstone/revisiting-the-separation-of-church-and-state-in-our-time-of-deep-division

October 8, 2021 | Permalink

Tuesday, October 5, 2021

New issue of Journal of Law & Religion

A new issue of the Journal of Law & Religion has been published, and it's available for free (here) until November 15.  The issue features an article from Nate Oman and book review contributions from Frank Ravitch, Cathy Kaveny, Robin Fretwell Wilson, Perry Dane, and many others.  Definitely worth checking out. 

October 5, 2021 in Vischer, Rob | Permalink

Eric Hageman responds to Hadley Arkes on constitutional interpretation

In recent months, in various forums, there have been interesting and important conversations and debates -- involving many Catholic legal scholars, including Gerard Bradley, Robert George, Sherif Girgis, John Finnis, Adrian Vermeule, and several other MOJ contributors -- about constitutional interpretation, "originalism" in its various stripes and also its rivals, the role of the common good and of natural law in judicial decisionmaking, the (in)adequacy of liberal proceduralism, and so on.  The upcoming Dobbs case, in particular, has been central to these conversations and debates.  Recently, Hadley Arkes (in the Wall Street Journal) and Ed Whelan (at the Bench Memos blog) had some back-and-forths on these topics.  (Go here for some links.) 

My friend and former student, Eric Hageman, wrote up a short response to Arkes's WSJ piece, and -- with his permission -- I'm posting it below:

My friend and mentor Hadley Arkes writes again to advance his vision for “a better originalism,” decrying the “truncated originalism” of yesteryear and arguing it is insufficient for conservative judges to reject Roe merely because the Constitution contains no right to abort one’s child.  Instead, we are told, judges must reach past written law and decide abortion cases based on the immorality of abortion.

Professor Arkes’s proposal ignores the importance of judicial fidelity to written law, and his attacks are effective only against a third-rate version of originalism.

Though Professor Arkes does not tell us how, precisely, the “better originalist” judge would behave, I assume he would decide cases by referring directly to moral reasoning, as a supplement to (if not outright replacement for) the written law.  Applied to, say, Dobbs, the opinion of Arkes, J., would uphold Mississippi’s abortion restriction on the ground that one has no moral right to take a life, setting aside the Constitution’s silence on abortion, the possibility that the due process clauses protect unborn people, and the historical and moral contexts of both.

I doubt I’d have any qualms with Justice Arkes’s moral reasoning, but it would have no business in the U.S. Reports.  We are a constitutional republic, which means we’ve delegated certain duties to certain offices and their holders.  We have given Congress power to make law.  (More accurately, we’ve transmitted some legislative power to Congress from the states.)  We’ve given federal judges power to resolve cases or controversies.  Sometimes, a case requires a judge to decide whether a statute violates the Constitution, which is the superior law.  Judges act within their authority by applying the Constitution over the inferior law (or by leaving the inferior law alone if it does not violate the Constitution).  When a judge decides this conflict by relying on anything but the Constitution and statutes (whose meanings are, of course, informed by moral and historical context), she places that consideration above one or the other, contrary to her constitutional power.

These principles are simple and easy to understand, only a step removed from Schoolhouse Rock’s three-ring circus.  But, as I’ve written elsewhere, it’s hard to overstate the scandal that takes place when a judge violates these principles, relying on extralegal considerations to “interpret” law.  It disserves litigants, actual and potential, who rely on written law to situate their affairs.  It tells other judges—including those whose relationship with moral principles and the natural law is more tenuous than Professor Arkes’s—that they, too, may supplement imperfect statutes with their own moral reasoning, which they will not recognize as inferior to Professor Arkes’s.  Most importantly, it strips us, the American people, of our right to constitutional republicanism.  Justice Scalia’s dissent in Obergefell is right:  This isn’t merely about results.  It’s not even about the words on the page.  It’s about sovereignty, about who governs you.

That’s why originalism and textualism are so important: they preserve our constitutional order and our right to govern ourselves.  And really, they are no more complicated than the order they protect. Textualism is the simple proposition that statutes mean what their words were understood to mean at the time they were enacted.  Originalism is what we call the same proposition applied to the Constitution.  Both principles reflect the facts that (1) our laws are written words and (2) words have objective, ascertainable meaning.  Viewed like this, theories of textualism are so obvious they hardly deserve a name.

As far as I know, Professor Arkes has yet to cope with this humble account of originalism and textualism.  As Ed Whelan argues in his own response, the version of originalism Professor Arkes attacks instead is unrecognizable to most conservative judges.  He aims his fire first at Bostock, claiming that Justice Gorsuch’s opinion for the Court would be corrected “most decisively” by the moral truth that sex is unchangeable.  But in the same breath, Professor Arkes seems to acknowledge that no single educated reader in 1964 would’ve thought “discrimination on the basis of sex” meant “discrimination on the basis of sexual orientation” or “discrimination on the basis of sex identity.”  Textualism asks precisely that question, and, applied properly, would solve Bostock to Professor Arkes’s satisfaction.  Later, Professor Arkes claims that Loving v. Virginia, which struck down interracial-marriage bans, has no textual basis in the Constitution, which says nothing of marriage.  This simply ignores the Equal Protection Clause, which no textualist would do.

I’m deeply disturbed by this theory of “better originalism,” in part because it echoes some of the ugliest features of other recent postliberal arguments.  For one, it tends to judge originalism (and itself) only for the results it achieves, ignoring the way it achieves them.  But then, despite this consequentialism, the theory cannot account for the results it will yield in the hands of its enemies.  Moreover, its proponents hardly ever tell us what affirmative behavior they’d like to see; they simply reject the status quo, optimizing rhetorical leeway.  Most concerning, it reflects and appeals to a disturbing cynicism (which I am sincerely, absolutely certain Professor Arkes does not himself share): that neutral principles are fairytales, that we should emulate progressives’ success in setting fire to antiquated notions of pluralism and liberalism.  Applied here, that “their” judges have had their fun, and now it’s time for “our” judges to have theirs.

The bitter irony is that the neutral principles Professor Arkes decries would have saved us from the cases he decried.  Those principles, intelligently and faithfully applied, would have yielded the results Professor Arkes wants, perhaps indicating that our written law is enough to protect us from progressivism.  Herein lies yet another feature of contemporary postliberalism (again, one I’m certain Professor Arkes does not himself suffer): extraordinary ingratitude, a desire to kill the goose that laid the golden egg.  Much like centuries of liberal democracy and American capitalism have produced extraordinary prosperity and personal liberty, forty years of textualism and originalism have produced a federal judiciary that reliably rejects progressive excesses and focuses instead on fidelity to the law and the rights of those it exists to serve.  Where our liberal democratic principles have failed, it has been because those in power reject, undervalue, and undermine these principles, ignorant of the miraculous conditions in which we find ourselves.  But the answer to those failures is more capitalism, more republicanism, more pluralism, and more liberalism.

So too here.

* * *

Eric Hageman is an attorney in Washington, D.C.

October 5, 2021 | Permalink | Comments (0)

Sunday, October 3, 2021

Our deepening polarization

On Thursday, the University of Virginia released the results of a survey that offers important but jarring insights. Among the findings:
 
  • 41% of Biden voters and 52% of Trump voters at least somewhat agree that red states / blue states should secede from the union to form their own separate country.
  • 46% of Biden voters and 44% of Trump voters at least somewhat agree that it would be better for America if whoever is President could take needed actions without being constrained by Congress or the courts.
  • 62% of Biden voters and 82% of Trump voters at least somewhat agree that “our country needs a powerful leader in order to destroy the radical and immoral currents prevailing in society today.”
  • 56% of Biden voters at least somewhat agree that there’s no real difference between Republicans and Fascists, and 76% of Trump voters at least somewhat agree that there’s no real difference between Democrats and Socialists.
  • 75% of Biden voters and 78% of Trump voters at least somewhat agree that Americans who strongly support the opposing party have become “a clear and present danger to the American way of life.”
  • 80% of Biden voters and 84% of Trump voters at least somewhat agree that elected officials from the opposing party are a “clear and present danger to American democracy.”
These numbers should be deeply concerning. The past two years have underscored an unpleasant reality: civilization is thin. The rule of law is a project that each generation must choose to embrace, and that project is dependent on trust. If those who disagree with me politically are a clear and present danger to my way of life, an ongoing commitment to build relationships across difference seems quaintly out of touch at best. And if my opponents are not just wrong, but evil, then the emerging bipartisan trend of protesting at the homes of judges and elected officials is not a cause for worry, but a necessary example of our obligation to oppose existential threats to our democracy by any means necessary.
 
If we prioritize debating contested issues in ways that reflect mutual respect, we stand accused of dangerously elevating form over substance. After all, we’re not dealing with the Democrats / Republicans of past eras – we’re dealing with Socialists / Fascists! We learned our lesson about dealing with these people in The Cold War / World War II: brute force is the only path forward. Once we’ve eliminated the existential threat, we can get back to building relationships across difference.
 
For those of us who are law professors, with this level of mutual antipathy so prevalent in American society, how are we supposed to go about preparing our students to flourish? It’s not that all of our students fall neatly into these warring camps – many do not. But they’re all being formed against the backdrop of these warring camps. Many of our students have no interest signing up for an all-out red-versus-blue battle, but they know they might easily be drawn into the daily skirmishes if they say something that can signal membership in the opposing camp, whether they intend to or not. Their understandable response is to disengage, pull back, and remain silent about issues that matter greatly to our shared future. This withdrawal precludes the opportunity for deeper relationships and new perspectives.
 
I spend a lot of time talking about these issues in my role as a dean, not only because I want my law school to be a strong, welcoming, and diverse community in which our students can flourish, but because our willingness or unwillingness to build relationships with those whose ideas we oppose is a powerful harbinger of what is to come for our world.
 
The new poll results should not be a discouragement, but a reminder: we are not audience members, passively observing the state of our country. We are all active participants, and we need to listen, learn, and lean in. We must model what it means to disagree vigorously within relationship, not as a precondition to relationship. Will these individual efforts, standing alone, heal the fracturing that has accelerated dramatically in our nation in recent years? Of course not, so let’s call it what it is: a good place to start.

October 3, 2021 in Vischer, Rob | Permalink

Thursday, September 30, 2021

Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic

Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic

Richard Garnett
Paul J. Schierl/Fort Howard Corporation Professor of Law
Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School


Mitchell Koppinger
Notre Dame Law School

This chapter examines a series of opinions and orders, issued by the Court during its 2020-21 Term, in connection with religious-freedom challenges to various regulations and restrictions issued by governments in response to the Coronavirus pandemic.

Read at SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3933052

September 30, 2021 | Permalink

Justice Samuel Alito: "The Emergency Docket"

A public address by US Supreme Court Associate Justice Samuel Anthony Alito, Jr. on "The Emergency Docket." Presented by the Constitutionalism and Rule of Law Lab at the Kellogg Institute for International Studies, with co-sponsorship by the Notre Dame Law School.

Livestream will begin at 12:30 pm - Thursday, September 30, 2021
 

September 30, 2021 | Permalink

Monday, September 20, 2021

Webinar with Stuart Banner on "The Decline of Natural Law"

The McCullen Center at Villanova will host a webinar on Tuesday, September 21 at 4:30pm EDT featuring Stuart Banner of UCLA Law speaking about his book The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press, 2021) with commentary from Michelle Madden Dempsey (Villanova) and Jeffrey Pojanowski (Notre Dame). Registration and details available here.

September 20, 2021 in Moreland, Michael | Permalink

Program on Church, State & Society 2021 fellows share summer experiences

Three Notre Dame Law students gained valuable exposure this summer in the area of religious-institutions practice. Sponsored by the Law School’s Program on Church, State & Society, each summer fellow assisted a religiously affiliated organization.

Read about their fellowship experiences here: https://churchstate.nd.edu/news-events/news/program-on-church-state-society-2021-fellows-share-summer-experiences/

September 20, 2021 | Permalink

Wednesday, September 15, 2021

Initiative on Restorative Justice & Healing at St. Thomas Law

St. Thomas Law opened its doors twenty years ago last month, and one way we are celebrating is by redoubling our commitment to live out our distinctive Catholic mission in ways that meet the needs of our society.  Last week, we launched the Initiative on Restorative Justice & Healing, a coordinated effort to leverage our expertise and resources to help restore relationships fractured by injustice, with a particular focus on racial injustice, sexual abuse by clergy and institutional failures within the Catholic church, and societal polarization.  Directed by my faculty colleague Fr. Dan Griffith, this project is a great example of our mission in action, demonstrating the importance of integrating legal acumen with empathy, concern for the whole person, and the transformative power of human connection.  Fr. Griffith and Professor Hank Shea, a former federal prosecutor, have been co-teaching a course on restorative justice for several years, and we will look to expand those efforts to include a hands-on restorative justice practicum course, community partnerships, externships, lectures, conferences, training sessions, and broader visibility into ways that restorative justice practices can help bring healing to our communities. 

With an understanding of justice as right relationships, we believe that this work can be a core component of Catholic legal education. 

This video (created by Hunter Johnson) is a helpful introduction to the role that restorative justice has played in the resolution of clergy sexual abuse cases in our Archdiocese, and this video of last week's launch event provides a preview of the Initiative's potential impact.  Restorative justice pioneer and former Wisconsin Supreme Court Justice Janine Geske will chair the Initiative's advisory board.

September 15, 2021 in Vischer, Rob | Permalink

Monday, September 13, 2021

Case Prompt for Notre Dame Law School’s Sixth Annual National Appellate Advocacy Tournament for Religious Freedom

Just released - the case prompt for this year's National Appellate Advocacy Tournament for Religious Freedom.

Download NDNAAT 2021-2022 Case File

The tournament takes place (virtually) Friday, October 8, 2021 through Sunday, October 10, 2021. 

There is still room for a few more teams. To register, see this link:https://shop.nd.edu/C21688_ustores/web/product_detail.jsp?PRODUCTID=8367&SINGLESTORE=true

Questions regarding the tournament should be directed to Zahraa Nasser at [email protected]

September 13, 2021 | Permalink

Friday, September 10, 2021

A second, more skeptical assessment of United States v. Texas

As a counterpoint to yesterday's earlier optimistic assessment, here's a second, more skeptical assessment of the complaint in United States v. Texas (W.D. Tex. 2021).

For standing purposes, the three counts can be grouped into two categories. 

Count I asserts irreparable injury to the sovereign interest of the United States in ensuring that individual federal constitutional rights "remain redeemable in federal courts." ¶ 13. Although portions of the complaint read at times like the U.S. is asserting individual rights as an association might assert the rights of its members, that does not seem to be what's going on here. These allegations of the complaint instead seem to be focusing on ensuring the enforceability in federal court of individual rights only insofar as those rights relate to the interest of the United States as a sovereign in ensuring such enforceability. Put another way, it seems as if the United States is asserting  a sovereign interest theory based on the combination of (1) infringing "the constitutional rights of the public at large," and (2) blocking "the injured members of the public from challenging that law in court." ¶ 44.  This seems to be a novel theory of sovereign-interest standing, but perhaps novelty calls forth novelty. In any event, let's put it aside for now and come back to this one after looking at the other category.

Counts II (preemption) and III (intergovernmental immunity) rest on a more familiar theory of injury, namely that the Texas Heartbeat Act conflicts in various ways with the operations of the federal government through effects on officials, employees, and contractors. Assuming that this kind of injury is a kind that counts, the United States still seems to have a California v. Texas problem of showing "actual or imminent" injury that is "fairly traceable" to "allegedly unlawful conduct."  The key paragraph here is ¶ 78:

The United States has an “actual and well-founded fear that” the arms of the state that Texas has enlisted will enforce the law directly against it and its agencies, as well as against the public at large, whom the State has endeavored to keep from challenging the statute. Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). There is a self-evident risk that at least one of the many state actors capable of enforcing the law would sue in the case of a violation, and that the state’s judicial apparatus would adjudicate that claim. 

As thus framed, this is an organizational standing kind of theory that depends on interference with specific federal entities, officials, employees, contractors, etc. But as deployed here—with reliance on "a self-evident risk that at least one of the many state actors capable of enforcing the law would sue" [at least one of the federal entities, employees, officials, contractors, etc.]—-the government seems to be relying on a statistical likelihood theory rejected by the Court in Part III of Summers v. Earth Island Institute (2009). The US will have a chance to submit affidavits or other evidence to flesh out its allegations. But theory itself appears insufficient as pleaded.

It's hard to believe that DOJ would rate the chance as good that these Counts II and III could get through the current Supreme Court on this "self-evident risk that at least one" theory. The alphabet soup of DOL, ORR, BOP, CMS, OPM, and DOD in ¶¶ 47-77 provide an appearance of specificity, but still at too high a level of generality.

So let's go back to the sovereign interest theory in Count I. The government's most expansive precedents here are two Fifth Circuit decisions from the 1960s, United States v. City of Jackson (5th Cir. 1963), and Fla. E. Coast Ry. Co. v. United States (5th Cir. 1965). Each of those cases involved obstructions of interstate commerce (one via racial discrimination in transportation and the other a railway strike). The allegations of United States v. Texas, by contrast, point to an increase in interstate activity due to the in-state abortion restrictions. That kind of activity might be sufficient for federal legislation, but it's hard to see how it's a hook for sovereign-interest standing apart from any particular federal statutory scheme.

The idea that the United States has a sovereign interest to support standing to seek equitable relief enjoining the application of state law whenever that law's operation allegedly invades individual rights is obviously overbroad. That is why the complaint always links this alleged invasion to the foreclosure of judicial review. But as Howard Wasserman has pointed out repeatedly, this depends on the implausible assertion that "defending in state court and appealing to SCOTUS [is] not a traditional mechanism of federal judicial review."  

There's more that can be said, but this is all I've got for now. I'd like to take back my earlier assessment that at least one of the counts will make it to a merits determination (at least by the time the Supreme Court is done with the case; all bets are off for W.D. Tex. and 5th Cir. since I don't know them well enough to have an opinion). But I'll stick with the assessment that "the federal government will lose on all counts whether or not the merits are reached on any of them." We'll see!

September 10, 2021 | Permalink

Thursday, September 9, 2021

An early, optimistic assessment of United States v. Texas

Earlier today the United States filed a complaint against Texas in the Austin Division of the United States District Court for the Western District of Texas. The complaint seeks a declaratory judgment that the Texas Heartbeat Act is unconstitutional in its entirety, along with "[a] preliminary and permanent injunction against the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8—prohibiting any and all enforcement of S.B. 8."*

This complaint is a move I've been waiting for since first analyzing the jurisdictional and procedural complications posed by the Texas Heartbeat Act. It's not without its risks to the Biden Administration, but inaction would have been even worse. In a Prawfsblawg comment last Friday morning, I observed that "Texas does not enjoy sovereign immunity in suits brought by the United States. If the United States itself can develop the grounds for injunctive relief against Texas, sovereign immunity would not be a barrier." If the United States wanted to make a particularly forceful claim for attention, I suggested the potential for filing directly in the original jurisdiction of the Supreme Court of the United States. I noted the Court's 1892 decision allowing another case called United States v. Texas to proceed in the Court's original jurisdiction and pointed interested readers to James E. Pfander's important article "Rethinking the Supreme Court's Original Jurisdiction  in State-Party Cases." Those are still good places to start in diving in to some of the jurisdictional issues. Now that we have a complaint to focus on, though, it's better to begin with that.

There are three counts in the portion of the complaint labeled "Claims for Relief":

Count I (Supremacy Clause--Fourteenth Amendment) asserts that "S.B. 8 violates the Fourteenth Amendment of the U.S. Constitution, as elucidated by the Supreme Court in Roe and Casey, by depriving women of the ability to obtain a pre-viability abortion in most cases. S.B. 8 therefore is invalid under the Fourteenth Amendment and the Supremacy Clause." ¶ 82.

Count II (Preemption) contends that "S.B. 8 is preempted by federal law—including the statutes and regulations outlined [earlier in the complaint]—to the extent it prohibits certain pre-viability abortions that federal agencies are charged with facilitating, funding, or reimbursing." ¶ 87. 

Count III (Violation of Intergovernmental Immunity) states that "S.B. 8 directly regulates the activities of the federal government and its contractors, grantees, and nongovernmental partners. S.B. 8 therefore violates the federal government’s intergovernmental immunity and is invalid in such applications." ¶ 91. 

The complaint raises a bevy of complex and novel jurisdictional, procedural, and remedial issues, not to mention the high stakes of the substantive law at issue.

Those high stakes are perhaps the best place to start in analyzing this complaint. This sovereign v. sovereign lawsuit raises the stakes for the Supreme Court's consideration of the ongoing validity of its abortion precedents. The viability line of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey was already likely to be swept away in Dobbs v. Jackson Women's Health OrganizationBy filing United States v. Texas, the Biden Administration has raised the stakes even higher than they already were in Dobbs. My hopeful assessment is that the federal government's lawsuit today makes a broad decision Dobbs at least a little more likely than it had been. A decision that leaves the substantive constitutional law of abortion unclear as it applies to laws other than the 15-week ban at issue in Dobbs has always been undesirable for the Court. Assuming that a majority of the Justices already recognizes the unsoundness of Roe and Casey, one contributing factor leading to that conclusion is the perception that umpiring abortion laws has undermined the Court as an institution. With a presidential administration and one of the two major political parties already primed to attack the Court for the reversal of Roe and Casey, the Court may as well do its best to leave the field decisively. The way to do that is to acknowledge that state abortion restrictions are justified as extending the protection of the laws to unborn persons within their respective jurisdictions, and the federal judiciary has no judicially manageable standard by which it can displace the states' treatment of unborn persons as Fourteenth Amendment persons. Nor can the federal government by fiat simply render unborn persons as nonpersons by hiding behind Roe's erroneous determination that Fourteenth Amendment personhood definitively does not begin until birth.

As for United States v. Texas, I need to do more research and analysis, but I'm inclined to think now that (1) this suit by the federal government directly against the state will make it to a merits determination on at least one count (with Count I being the most likely), and (2) the federal government will lose on all counts whether or not the merits are reached on any of them.

I hope to have more to say in coming weeks as I and others dig deeper into the alluring complexities of United States v. Texas, but that's all I have for now.

* (S.B. 8 is what the complaint calls the Texas Heartbeat Act even though it's now an enacted law and not just a Senate Bill. This kind of rhetorical move is common in litigation like this. One way to form a quick assessment of the likely outlook of someone writing about this Texas law is to see what term they use to describe it.)

September 9, 2021 in Walsh, Kevin | Permalink | Comments (0)

Wednesday, September 8, 2021

Notre Dame Law School’s Sixth Annual National Appellate Advocacy Tournament for Religious Freedom is now live

Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this fall to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!

https://shop.nd.edu/C21688_ustores/web/product_detail.jsp?PRODUCTID=8367&SINGLESTORE=true

The tournament takes place: Friday, October 8, 2021 through Sunday, October 10, 2021. 

The case problem, official rule book, and scoresheet will be distributed on Friday, September 10, 2021. Teams will have until Saturday October 2, 2021 to submit their briefs.

Questions regarding the tournament should be directed to Zahraa Nasser at [email protected]

September 8, 2021 | Permalink

Tuesday, September 7, 2021

A Response to the Next Lawyer Joke Thrown Your Way

Dating back to 1548, most Jesuit educational institutions, and many Catholic colleges and universities, mark the beginning of the academic year with the Mass of the Holy Spirit.  This year, at the Catholic University of America, our Chancellor and Cardinal, Archbishop Gregory, delivered a particularly special homily regarding the Catholic lawyer.  He began by saying: 

The Catholic University of America has produced a number of great lawyers over time.  Many of you at Mass today perhaps are now enrolled in our law school.  Others of you may have lawyers in your own families.  A good lawyer can be a wonderful helper in a difficult situation, because a lawyer is a person who is dedicated to discovering the truth at all costs.  Lawyers also take a lot of criticism in our society.  Some of that criticism may be justified.  At other times, such criticism may be directed toward lawyers because of envy, anger, or misunderstanding of the kind of things that a bright attorney can do to improve life for lots of people.

You have probably never thought of the Spirit of God as an attorney, but that is close to the meaning of the word: PARACLETE! 

I have always bristled at the lawyer jokes, myself.  The attorneys I know work tirelessly on behalf of many marginalized people and offer a voice to those who have none.  Many of the students I have had the honor of teaching chose to attend law school, not for promises of financial success, but simply to improve the world around them and respond to injustices they have encountered.  Cardinal Gregory's homily offers an excellent rebuttal to those who have a lesser view of attorneys - and a reminder to us all of our vocation to teach and advocate for the greater good.  His full homily can be found here.  

September 7, 2021 in Leary, Mary G. | Permalink

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2021 update to the Scholarly Impact Ranking of law faculties (here), I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude today.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

NotredamelibraryFor some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university

Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.

Through our work — through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) — we may have a significant influence on the development of the law and of the legal culture.  As my Dean Rob Vischer has written (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:

By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege — and a grave responsibility.

September 7, 2021 in Sisk, Greg | Permalink

Postdoctoral Research Associates in Religion and Politics 

Postdoctoral Research Associates in Religion and Politics 

The John C. Danforth Center on Religion and Politics seeks applications from junior scholars and recent Ph.D. graduates for up to four postdoctoral fellowships in residence at  Washington University in St. Louis. The appointment is for one year, renewable for a second year. Eligible applicants must complete the Ph.D. by July 1, 2022, and are  expected to have completed it no earlier than January 1, 2017. In exceptional cases a  qualified applicant who completed the Ph.D. prior to 2017 or who hold a J.D. without a Ph.D. may be considered. Research associates will spend most of their time pursuing  research and writing for their own projects. They will also serve the intellectual life of the  Danforth Center on Religion and Politics through participation in its biweekly  interdisciplinary seminar and events hosted by the Center. Their teaching responsibilities  will include: 1) developing one course per year to complement and contribute to the  Center’s curricular offerings, and 2) possibly assisting in one additional course each year  (depending on the particular teaching needs of the Center). Washington University in St.  Louis is an equal opportunity and affirmative action employer and especially encourages  members of underrepresented groups to apply. 

Required Qualifications: Applicants should hold a doctorate in religious studies, politics,  anthropology, law, philosophy, theology, American studies, history, Jewish studies,  sociology, or another relevant field. Scholars should be engaged in projects centrally  concerned with religion and politics in the United States, historically or in the present day. 

Application Instructions: Applicants must send all of the following information as a  single pdf file to the Center at [email protected]

1) Cover letter including an overview of the postdoctoral research project  2) Current curriculum vitae 

3) Relevant writing sample (25-35 pages) 

4) Two undergraduate course proposals (a summary paragraph for each will suffice) 

Applicants should also arrange to have three letters of recommendation submitted on their  behalf to [email protected].  

Applications are due in full by January 6, 2022. Applicants will be notified of  fellowship decisions by March 2, 2022. For more information, contact the Center at (314)  935-9345 or via e-mail at [email protected]

Salary Range: Competitive salary commensurate with experience.

September 7, 2021 | Permalink

Boston College Law School Dean Search

The Dean Search Committee for the Boston College Law School has been announced.  Former MOJ-er Vince Rougeau (now President of the College of the Holy Cross) has left big shoes to fill!  Good luck to BC!

September 7, 2021 in Garnett, Rick | Permalink

Monday, September 6, 2021

O. Carter Snead on the Texas abortion law and Roe v. Wade

My friend and colleague, Carter Snead -- whose work is almost certainly familiar to MOJ readers -- has an excellent op-ed in The Washington Post, called "Critics of Texas's Convoluted Abortion Law Have a Point:  The Solution is To Overrule Roe v. Wade."  A bit:

[W]hy are we now reduced to having a fevered meta-argument about procedural technicalities regarding the jurisdiction of federal courts? In short, it is because Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court.

There is a road back to normalcy. The Supreme Court can put us on it by dismantling its ill-founded abortion law apparatus and freeing the American people to reason together, just like our friends in numerous other countries including England, France, and Germany have been free to do, and enact laws that protect and care properly for women, children (born and unborn) and families in need.

September 6, 2021 in Garnett, Rick | Permalink

Sunday, September 5, 2021

Scholarly Impact and Catholic Legal Education (Part Two)

Last week, I reported the 2021 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today.  This is the second in the series of three.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

FordhamMy second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By producing excellent and well-written legal research, sharing our legal scholarship with others, and receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler — who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law — wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity —- especially the scholarly mediocrity — of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality * * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities — throughout their academic departments, including within the law schools — scholarship suddenly became a more important focus.

In our Catholic law schools, we are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

September 5, 2021 in Sisk, Greg | Permalink

"Establishment's Political Priority to Free Exercise"

I have a new paper on the political relationship of establishment and free exercise as exemption. It responds to several scholarly and other claims and trends in First Amendment work. But some of the paper's arguments and implications are directed toward advocates of religious liberty as much as opponents. Here is the abstract:

American law is beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—has now, and has always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that supports the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

September 5, 2021 in DeGirolami, Marc | Permalink

Friday, September 3, 2021

Professor Rick Garnett Filed Amicus Brief Regarding Ministerial Exception

Professor Rick Garnett, along with other constitutional law scholars, filed a brief of amici curiae (Belya et al vKapralregarding church autonomy and the ministerial exception. 

The brief can be read Download 2021-09-02 ECF 93 Amici Curiae Brief [Belya v Kapral] (1).

September 3, 2021 | Permalink

Scholarly Impact and Catholic Legal Education (Part One)

Two days ago, I reported the 2021 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Every three years, I also post to Mirror of Justice a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  Over the next week, I'll repost revised versions of these posts, as they remain just as salient today.

Whenever a report or study is published on the scholarly activities of law professors, it is likely to provoke some critical responses questioning whether legal scholarship has any practical value. Someone is likely to argue yet again that law professors spend too much time on scholarly writing at the expense of their teaching responsibilities. Saint_Thomas_Tutor_Law_School-e1463650664193

In my view, this usually reflects a false conflict between scholarship and teaching. We should not view scholarly work and teaching as competing with each other, rather than understanding that the intellectual preparation found in scholarly research and writing is complementary to greater depth in teaching.  As we wrote in our 2018 report:

Why would students want to learn from the law professor who arrives at the classroom podium only after abandoning rigorous written engagement with legal problems? How can we expect students to be inspired to professional leadership, masterful and dedicated client representation, and principled law reform if their professors do not exemplify the intellectual curiosity, the breadth of thought, and the conscientious inquiry of a legal scholar?

When I am asked, with respect to my own institution, the University of St. Thomas, whether we should continue to strive for scholarly excellence and national scholarly prominence or whether we should devote greater attention to teaching and enhancing professional formation, my answer is an unequivocal “yes!” Especially during these challenging times, whether because of additional duties during the pandemic or shrinking faculty size with budgetary challenges, we as tenured faculty members need to step up and work even harder to achieve excellence in both responsibilities.

Moreover, it bears reminding, even if the teaching and counseling duties of tenured faculty have increased during the academic year, the long, glorious months of summer would remain. At most law schools, few students are in school and few classes are being taught during the summer and those that are taught during summer are rarely taught by full-time faculty. Given that luxury of uninterrupted weeks of work time, most tenured faculty have been given more than ample opportunity to produce one or two major works of scholarship each year.

I want to address today a more pointed question: How important is scholarly impact to a Catholic law school?

For three reasons, I think the scholarly mission of the tenured (and tenure-track) law faculty takes on added importance for the Catholic law school: (1) an intellectually engaged law school culture requires scholarly-engaged law faculty; (2) a scholarly-prominent Catholic law school is a strong witness for the intellectual vibrancy of scholars of faith; and (3) a Catholic law school through the scholarly work of its faculty influences for good the culture in which it is situated.

I’ll say a little more about the first of points below and then follow up with the other two points in separate posts over the next week.

On my first point, a law school that is meaningfully Catholic in character will be grounded in the Catholic intellectual tradition, while giving careful attention to and including faculty who work from other intellectual traditions and scholarly movements. Indeed, one of the signature virtues of the Catholic intellectual tradition is that it is enriched by other traditions as well. A law school cannot be an intellectually vigorous place without faculty who are engaged in the quintessential intellectual activity of scholarly research and writing. One can best convey to students the excitement and meaning of intellectual discourse, along with the satisfaction of applying reason informed by theory to new situations, when one is doing that hard scholarly work oneself.

I recall a law professor from another law school many years ago who referred in casual conversation with me to the “scholarly” faculty at yet another law school (that shall remain unnamed). She characterized them as an genuinely scholarly faculty because, even though no one on that faculty produced much in the way of scholarly publications themselves, the faculty gathered every couple of weeks in the faculty lounge to discuss a recent scholarly article written by someone elsewhere. At the time, I thought how odd it would be to describe the faculty at a school of music as musically engaged, even though none of the faculty wrote music or played instruments, but instead gathered frequently to listen to and discuss music written or played by others.

If we are to bear witness to the Catholic intellectual tradition — and other intellectual disciplines — we must be thinking hard about those matters. And that means writing about them. We all know that a student can listen to a classroom discussion without thinking. And, as we’ve all experienced, especially when trying to read a legal text late in the evening, a person can read without thinking. But no one can write without thinking. Putting pen to paper (literally or figuratively through a keyboard) demands an engagement for which no discussion group, conversation, or attendance at a lecture by someone else can substitute.

By engaging in scholarly writing of our own, we enhance our ability to critically examine the previously published scholarship of others, and we frequently discover the greater persuasiveness of prior scholarly work when we take the time to examine it in our own work. As I often am reminded in doing research, it is very easy to unfairly criticize the scholarly work that someone else has done, only to find when I actually engage with the same issues and materials in doing my own work, that the prior researcher did very well with what she had before her. One is rightly skeptical of purported scholars who pontificate on the work of others but have never done the heavy lifting of laboring in that field themselves.

More to come.

September 3, 2021 | Permalink