Wednesday, July 27, 2005
As a follow-up to my earlier post, my friend and former colleague Brian Tamanaha, one of today's leading voices on the rule of law, agrees that civil disobedience by judges is an option, but probably not the best one:
I see no conceptual reason why judges cannot commit civil disobedience. They can be conscientious objectors to the law like anyone else, though they must be prepared to be fired as a result, because they have taken an oath to abide by the law which they will have violated.
As you indicate, it perhaps makes a stronger point than the alternatives. I would only add that, with respect to integrity of conduct and belief, it seems to me that the resignation alternative has more to commend it. By resigning they do not violate their oath to law and they do not commit the moral wrong. By civil disobedience, they act consistent with the moral view but violate their oath to the law. You should remember that the party before the court has legal rights as well, which the judge will be knowingly trampling (however well meaning), and the idea that the appellate court can step in is not a complete solution, especially when time is of the essence.
Perhaps you also underestimate the signal given by resignation. Quitting one’s job is a protest to the system that exacts a high personal cost; in contrast, civil disobedience imposes the immediate cost on the party before the court, and will likely result in a sanction to the judge that is less than being out of a job. Which of these two positions raises a more dramatic protest as a matter of personal conscience?
One of my favorite blogs is run by the University of Wisconsin's Prof. Ann Althouse. A few days ago, she had a post called "When government says what the 'true religion' is," commenting on Prime Minister Tony Blair's recent statement in the wake of the 7/7 bombings that the "moderate and true voice of Islam" needs to be "mobili[z]ed." Ann asks, "how can [Blair] say what the true interpretation of a religion is?" Similar questions were raised, a few months ago, by Eugene Volokh, regarding a proposed sex-education curriculum in Montomery County, Maryland. The proposed curriculum supplied "facts" -- including "facts" about religion -- designed to counter certain prevalent "myths" about homosexuality.
What should we think of Blair's comments? On the one hand, it seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines. (I wrote an article about this interest a few years ago). In fact, it seems to me that liberal governments have an interest in convincing people -- whether they belong to the religion in quiestion or not -- that the religion in question really teaches in accord with liberal values. After all, religion matters to many people, and it shapes the citizens on whose judgment democratic governments purport to rely. It is better, then, that religions inculcate some values, commitments, and loyalties rather than others. As I wrote in my article,"Governments like ours are not and cannot be 'neutral' with respect to religion’s claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching." On the other hand, there's the longstanding maxim that governments like ours should not -- and perhaps even may not -- take "cognizance" of religion, or "entangle" themselves with religion.
What do people think? Would it be wise or wrong [or unconstitutional?] for a government to undertake, as a matter of policy, to push the doctrines of a particular religion in a government-approved direction, or to support a particular government-approved faction within a religious tradition, in order to serve what the government regards as the common good?
I think the best article I've read on this topic is a typically brilliant article by Mike Paulsen. The article is entitled "Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused" and it was published in Volume 7 (1989) of the Journal of Law and Religion at pages 33-97. Another very good treatment of this topic is the paper by Russell Hittinger on "Thomas Aquinas on Natural Law and the Competence to Judge." This paper is included in a chapter of a book that I co-edited on "St. Thomas Aquinas and the Natural Law Tradition: Contemporary perspectives" (Catholic University of America Press 2004). A shorter version of Hittinger's paper is included as chapter 4 of his book "The First Grace" (ISI Books 2003).
There is at least one loose end that remains to be tied up from our discussion of the Catholic judge. A few days ago I indicated that a Catholic judge called to implement an immoral law faced four options: apply the law as given, resign, recuse, or engage in civil disobedience. One reader called the prospect of civil disobedience for a judge "absurd," and he may be right. But I won't concede the point without a bit more exploration.
Let's suppose that a Catholic judge hears a motion from a minor seeking permission to obtain an abortion without parental consent. The judge finds that there is not sufficient cause to grant permission, and denies the motion. The appellate panel -- comprised of judges who consistently seek to maximize reproductive rights -- rules that the lower court abused its discretion and remands for further proceedings. If the lower court now has no viable legal or factual basis on which to deny the motion, would Catholic legal theory deem it permissible for the judge to issue the following ruling?
Under state law as interpreted by the court of appeals in this case, this 15 year-old child is entitled to terminate the life of her unborn child without even notifying her parents, making a tragic situation even more tragic. Such an outcome is not acceptable in a legal system that purports to value both family and life. Here, the law acts to eviscerate both. I cannot facilitate such an outcome. The motion is denied.
The judge undoubtedly would be subject to sanction, and the appellate court would step in and grant the motion. The system remains intact, but a strong message of dissent has been registered. Recusal, by contrast, simply suggests that the judge has a personal hang-up or bias toward the case -- i.e., it's the judge's problem, not society's. At a minimum, such an act of civil disobedience by a judge seems more consistent with the rule of law than a judge's instrumentalist manipulation of law to pursue her own moral or religious ends. The former challenges the law overtly and can be addressed through established legal procedures, the latter subverts law covertly and corrodes the rule of law from the inside out.
I admit, scenarios justifying such acts are exceedingly rare (the Jim Crow South is another potential context), and depending on our view of Catholic legal theory, possibly non-existent. It's fairly easy to see that deference to the rule of law is not an absolute value for Catholic legal theory in a place like Nazi Germany, where the rule had been thoroughly and irredeemably corrupted. But in contexts where the rule of law, in broad terms, is still viable, are there any specific instances where the threat of injustice is so great that a judge would be justified in temporarily stepping out of her role as an agent of the law to become a (vocal) dissenter from the law?
Note that I'm not asking whether Catholic legal theory would ever require such a stance (I don't think it would), but whether such a stance is among the permissible options. In other words, does Catholic legal theory's embrace of the rule of law forbid civil disobedience by a judge?
UPDATE: My friend and former colleague Michael Simons reminds me that in 1997, Judge Sprizzo (S.D.N.Y.) acquitted two abortion protestors in a self-confessed act of "judicial nullification." Here's the story, along with Michael McConnell's perspective on the case.
And Greg Kalscheur, S.J. recommends Robert Cover's Justice Accused: Antislavery and the Judicial Process (1975), in which Cover considers different judicial approaches to enforcing the Fugitive Slave Act.
I have been following with great interest the discussion of recusal by Catholic judges. I weighed in over at my personal blog on some of these questions. My post Stare Decisis and Roe v. Wade discusses the question of whether Justice Roberts (assuming he is confirmed) would be bound by Roe. Obviously, the answer is no, but I observe in the post that some on the left are suddenly taking the concept of stare decisis far too seriously. In my post A Religious Test?, I argue it is appropriate (but politically stupid) for Democrat senators to inquire into the role Roberts' faith might play in his judicial decision making.
Tuesday, July 26, 2005
First Things has made available this essay, "Christians and the Death Penalty," by Joseph Bottum (the magazine's new editor), from the latest issue. It's powerful, and provocative, and has more in it than I can capture here. Here is the conclusion:
To leave the argument against the death penalty in the hands of those who no longer much believe this Christian story is dangerous. The people who think there is no such thing as a blood-debt are always surprised to see crowds outside penitentiaries where executions are about to take place, chanting for the execution. But those crowds appear at executions in the United States for a reason—because blood really does cry out from the ground. “He didn’t suffer as much” as his victims, one bereaved parent objected at Michael Ross’ death. Without the Christian revelation to restrain it, the sense of a blood-debt that must be paid will only grow.
When the jury brought in a sentence of execution for the man in Texas who had dragged to death a black man tied to his truck with a chain, one spokesman for the local African-American community announced that he was normally against the death penalty, but in this case it was justified repayment in blood for two hundred years of lynching. Horrible as that crime was, this is a fright ening thing to hear. The distinction between torts and crimes, between harms done to individuals and evils done to society, is breaking down across America.
You can see it in the recent emergence of civil suits for damages from murders, and the congressional orders for changes in trial procedures to accommodate the victims’ families during the Oklahoma City bombing trials, and the provisions of every new bill for victims’ rights, and the kind of testimony increasingly allowed during sentencing hearings. You can see it, perhaps most of all, in the thought, expressed by nearly everyone at Michael Ross’ execution, that the state’s criminal-justice system was paying something back to the families of his victims. Even Michael Ross came to believe it—came, in fact, to demand it, fighting every attempt to save him—and it is a primitive and pre-Christian understanding of justice.
The divine right of kings was a short-lived political theory, swept under by rival theories in early modern times. A new understanding of the limited sovereignty of government emerged, and one of the primary causes was the gradually developing awareness that Christianity had thoroughly demythologized the state. But that is not, by itself, a stable condition. Without constant pressure from the New Testament’s revelation of Christ’s death and resurrection, the state always threatens to rise back up as an idol. And one sign of a government’s overreaching is its claim of power to balance the books of the universe—to repay blood with blood.
In today's Boston Globe, Massachusetts Governor Mitt Romney explains why he vetoed a bill that would have expanded access to emergency contraception. Essentially, he argues that the bill would have altered abortion law, which he pledged during the campaign not to change. Here is his justification for that stance:
I understand that my views on laws governing abortion set me in the minority in our Commonwealth. I am prolife. I believe that abortion is the wrong choice except in cases of incest, rape, and to save the life of the mother. I wish the people of America agreed, and that the laws of our nation could reflect that view. But while the nation remains so divided over abortion, I believe that the states, through the democratic process, should determine their own abortion laws and not have them dictated by judicial mandate.
Because Massachusetts is decidedly prochoice, I have respected the state's democratically held view. I have not attempted to impose my own views on the prochoice majority.
I appreciate this deference to democracy, but if he truly wishes that the laws could reflect his prolife views and is legitimately positioned as governor to shape those laws, can deliberate inaction be justified by surveys showing that a majority of voters support the status quo? I suppose that without such a pledge, he would not have been elected in Massachusetts and not positioned to do whatever good he is doing. Still, his reasoning strikes me as a bit curious.
Revisiting Stephen Carter's Religiously Devout Judge and a Reprise of the Objective Model of Judging
More than fifteen years ago, Stephen Carter anticipated many of the questions that are being raised today about the legitimacy of religoiusly-devout judges drawing upon their religiously-based visions in making judicial decisions. Although he argued that a religiously-devout judge is as entitled to draw upon his religious faith as is another judge to draw upon moral principles, he concluded by asking whether it might not be preferable to return to the aspirational ideal of objective judging so that personal views, whether religious or otherwise, would not be the basis for judicial edicts. Below I set forth some of the concluding words in Stephen Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989):
"Now, of course, we ought to be uncomfortable with the idea that the religiously devout judge will proceed at once to her religious values—but only for the same reasons that we ought to be uncomfortable with the idea that any judge will proceed at once to her own values. * * *
I expect this proposal to make liberals uncomfortable, because the liberal uneasiness with religion is not readily overcome by brief, scholarly analysis. And yet, even if I have not convinced you that the religiously devout judge ought to be free to rest her moral knowledge on her religious faith, I hope that I have at least offered a plausible case for the proposition that there is no apparent reason to treat her religious faith differently from moral faiths of other kinds. The implication of this insight for the “do-the-right-thing” type of judicial review should be plain—either all judges should be free to rely on their moral knowledge as they make decisions, or no judges should.
The ideal of the objective judge was slain by the legal realists long before the critical legal studies movement resurrected it in order to kill it again. But the ghost of the objective judge refuses to go away. I doubt that the objective judge will die quietly, as long as liberals continue to think that letting a judge rest her decisions on a moral understanding is a good idea. Because once a judge’s moral understanding is permitted to play a role, the liberal argument cannot distinguish religiously based knowledge from other moral knowledge, or at least, cannot do so without arguments that require a bit too much cognitive dissonance. The aspirational model of the objective judge might offer the only path to sanity. And if we continue to pursue distinctions as crazy as this one, a path to sanity will be a useful thing to have."
The folks at Prawsblawg, a "group of young legal turkeys offering their thoughts on law and the things that really matter in life," have invited me to "guest blog" for a few days. So, check out the conversation. (For some interesting posts on Judge Roberts, religion, and recusal, go here and here and here).