Mirror of Justice

Review of McGreevy's "Catholicism and American Freedom"

My review (originally published in the Michigan Law Review) of John T. McGreevy's (relatively) recent book, "Catholicism and American Freedom," is now available on SSRN.  Here's the abstract:

John T. McGreevy's Catholicism and American Freedom tells the story of how America or, more particularly, American liberalism has reacted and responded to Catholic claims about the nature and purpose of freedom. It also addresses how these claims were, in turn, shaped by Catholicism's own interactions with, internal conversations about, and adjustment to American liberalism. As McGreevy shows, for many people and for many years, the Roman Catholic Church served as a foil for American values and ideals and vice versa. Indeed, it is no exaggeration to say that American liberalism has often defined and constructed itself precisely in opposition to its image of Catholicism. At the same time, Catholic institutions, practice, and belief developed in response to American and liberal challenges, and American Catholics have oscillated uneasily between sectarianism, segregation, and counter-culture, on the one hand, and engagement, accommodation, and assimilation, on the other.

McGreevy's account enriches our studies and conversations not only about church-state relations, but also and more broadly about education, citizenship, and loyalty. His history could improve present-day academic debates about the nature and role of public reason and the place of religious argument and expression in public life, and more generally he takes us to the heart of perennial questions about the prerogatives of the liberal state, the scope and content of religious obligations, and even the nature and end of the human person.

Rick

Recusal Standards and the Catholic Judge

My colleague Elizabeth Brown adds some legal insight to our recusal discussion:

Robert Araujo raises the issue of what are the standards for recusal for Supreme Court Justices.  Ed Harnett has addressed this in his post, but it might be useful to provide the relevant language from 28 USC Section 455:

§  455.  Disqualification of justice, judge, or magistrate [magistrate judge]

(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

. . . .

Roberts has represented a large number of corporations while at Hogan & Hartson but he could still hear cases in which these corporations are parties unless he worked on the matters before the Supreme Court for the corporations while he was at Hogan & Hartson or another lawyer at Hogan & Hartson was working on the matters while Roberts was with the firm.  28 USC §  455 (b)(2).  Just because he was a partner at Hogan & Hartson, however, does not mean that he must recuse himself from every case involving Hogan & Hartson that may come before the Supreme Court.  So Fr. Araujo's example of Justice Ginsburg and the ACLU would be similar to this later situation, i.e., unless Justice Ginsburg had worked on the matter that the ACLU was bringing before the Supreme Court she would not have been required to recuse herself under §  455.  While paragraph (a) of §  455 and paragraph (b)(1) require a Justice recuse himself in situations where his impartiality could reasonably be questioned or where he has a personal bias, this generally has not been extended to cover situations in which former clients of the Justice when he was in practice come before the Supreme Court on matters that he did not work on for them when he was in practice.  As Ed Harnett has already noted in his posting, paragraphs (a) and (b)(1) of §  455 would be the standard that would be applied to a situation in which a Justice's religious beliefs required that he decide a case in only one way.  In this case, he would not be impartial and should recuse himself.  For Supreme Court justices, they are their own arbiters of when they need to recuse themselves.  So for example, it would solely up to Roberts to determine if the Church's teaching on abortion precluded him from deciding an abortion case on the legal merits but forced him to decide the case in only one way.  To date, none of the other Catholic justices have felt compelled to recuse themselves when hearing abortion cases.

Recusal and the Rule of Law

Once again, thanks to those participants who have contributed to the discussion about judicial recusal. I would like to respond briefly to this topic and related matters involving “personal convictions about what the law ought to be.” Let me begin with recusal. I have mentioned before that recusal is a method for insuring that a judge who has a personal stake in a case does not participate in its deliberations. I think this means that if the judge has a direct financial interest in the conclusion, is related to one of the parties, or, as a lawyer, previously directed some aspect of the case for one of the current litigants, he or she should seriously consider recusal.

But let us take another situation. What if a judge has not only been a “member” of the ACLU but was a principal for a number of years. Should this person, if appointed to the bench, recuse himself or herself if the ACLU is a party in a case before this judge? This is the situation in the Kentucky Ten Commandments case in which the ACLU (of Kentucky) was a principal. Justice Ginsburg, who had a long professional association with the ACLU, participated in the case. I do not recall if there was any substantive discussion about whether she should have recused herself, but she did not. And, I do not think that she should have recused herself on the grounds of her membership and former role in the ACLU. So, we come to Judge Roberts. Why should he recuse himself in a case that might involve an issue raising the legal status of abortion? I do not believe that the reason that his “personal convictions about what the law ought to be” is a real issue in determining the matter.

Quite frankly, how do we explain a court overruling itself otherwise? The law that was settled in Plessy was unsettled by Brown. The law that was settled in Bowers was unsettled in Lawrence. The law that was settled in National League of Cities was unsettled in Garcia. The law that was settled in Union Gas was unsettled in Seminole Tribe. Were the personal convictions about what the law ought to be involved in these cases? Perhaps another way of looking at these changes in the law might be this: did the new case provide an opportunity for enough justices to say that the Court was “wrong” in the past, and today in this new case we can rectify the “error of the past” notwithstanding the question of something being previously settled. If Plessy, Bowers, National League of Cities, and Union Gas were “wrong,” what principle in the rule of law insists that Roe was, is, and must always be right?

It may well be that in the eyes and minds of some honest intellectual debate is dismissed as “personal convictions about what the law ought to be.” But, when some reason and logic are permitted to overrule precedent but other reason and logic are viewed as “personal convictions about what the law ought to be,” we have a problem in the rule of law. I understand as well as the next person the political consequences of overruling precedent, but I hasten to add that what is it in Roe that makes this precedent and its progeny immune from the scrutiny of reason and logic, key components of the rule of law? The reason and logic that Judge Roberts may have to bring to the reexamination of any precedent, including Roe, are not grounds for his recusal if the reason and logic of the other members of the Court are not subject to the same examination. If Judge Roberts is a virtuous man, and I think he is, what counts is the quality of his reason and his logic. The related pastoral issues which may sooner or later be involved are for Judge Roberts, his priest, and his bishop to address.  RJA sj

The politics of parish closings

According to this article in the Boston Herald, "[c]ity councilors Jerry P. McDermott, James M. Kelly and Paul Scapicchio want the Nov. 8 ballot to include a nonbinding question asking voters whether they agree that the archdiocese has failed to work with the city's neighborhoods to mitigate the impact of Catholic parish and school closings."  William Donohue, of the Catholic League for Religious and Civil Rights, responds:  ``[This] not only smacks of total disrespect for the principle of separation of church and state, it smacks of bias,'' he said. ``If the goal is accountability . . . why focus exclusively on the Catholic Church? This is sheer, unadulterated demagoguery.''

Rick

Notre Dame's new provost

My own University of Notre Dame has a new provost, Dr. Thomas Burish, formerly president of Washington & Lee University and provost at Vanderbilt.  I was particularly -- and favorably -- struck by Dr. Burish's letter to his soon-to-be-former colleagues at W & L:

Notre Dame is my alma mater. It aspires to be both a great academic institution and a great Catholic institution. This latter attribute, being a Catholic institution, is why I went there as an undergraduate, and is a major reason I am now drawn back to it. The challenge of wrapping together this faith-based heritage while further strengthening its academic excellence is a rare opportunity and, for me, a special dream. I did not anticipate this opportunity or seek it, but am excited by it and am grateful for it.

That Dr. Burish has these views -- and is willing to share them with his W & L colleagues -- strikes me as great news for Notre Dame, and perhaps also, more generally, for Catholic education.  God bless him.

Rick

Never Let Me Go

Last week (between mountain-biking outings and micro-brew tastings in Colorado), I read Kazuo Ishiguro's new novel, "Never Let Me Go."  I won't give much away, except to remind readers of what every reviewer has already divulged, namely, that the book is "about" clones who are created for the purpose of donating organs until they die.  Run, don't walk, to your bookstore, buy the book, and read it.  Ishiguro explores, using his usual wonderful prose, questions to which we've returned again and again on this blog, namely, what are we, what are we for, and does it matter that we are what we are and that we are for what we are for?

Rick

Althouse on Roberts and recusal

Here is law-prof blogger Ann Althouse's take on the "would Roberts recuse himself in abortion cases" debate.  And here is an op-ed by Jonathan Turley, in which he (in my view) appears to misunderstand the issue entirely.  Turley confuses a decision to recuse -- i.e., a decision not to take an action as a judge that would constitute culpable cooperation with evil -- with a decision to allow one's "personal religious views" to color one's interpretation of the law.

Rick

UPDATE:  Paul Horwitz at Prawfsblawg has a good post on Turley's error.

Hartnett on the Catholic Judge

Seton Hall law prof Ed Hartnett has emailed me his own thoughtful take on our conversation.  It's well worth reading and pondering:

Cardinal Dulles has emphasized that judges’ “primary task is to apply the existing law, not to decide cases according to their personal convictions about what the law ought to be.” Avery Cardinal Dulles, Catholic Social Teaching and American Legal Practice, 30 Fordham Urban L. J. 277, 287 (2002).  So, too, John Garvey, has written, “Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge.” John H. Garvey & Amy V. Coney, Catholic Judges in Capital Cases, 81 Marq, L. Rev. 303, 343 (1998).  Of course, a legal regime may be so corrupt that a judge should undermine that regime by deciding cases contrary to the law.  “But it is hardly possible to make that claim about our own legal system.”  While it “has flaws,” viewed as a whole, “it is a decent and just institution that judges should take care to preserve.” Id. at 343.  Similarly,  if “the existing law is truly contrary to the conscientious convictions of the judge, the judge may have to recuse herself rather than cooperate in a morally evil action.” Cardinal Dulles, 30 Fordham Urban L. J. at 288.   

Dean Garvey has undertaken a detailed analysis of the recusal question in the context of capital punishment, concluding that faithful Catholic judges may not sentence individuals to death, but may preside over the guilt phase of a capital trial, affirm a death sentence on appeal, and refuse to disturb a death sentence on collateral review. Garvey & Coney, 81 Marq. L. Rev. at 306, 329.  Garvey explains  that an appellate judge, unlike the sentencing judge, can rightly say that “he does not intentionally direct or promote the defendant’s execution,” but instead simply that “the trial court did its job,” and that the “responsibility for life and death lies somewhere else.” Id. at 327-28.  He adds that it “would be unwise from the point of view of death row inmates to leave the interpretation of the constitution to death-qualified judges.” Id. at 330.
       
Whatever the meris of the particular line drawn by Dean Garvey, it is important to realize that all judicial acts are not the same.  Simply because a faithful Catholic judge may not order that an abortion take place does not mean that a faithful Catholic judge may not determine to whom the law allocates the responsibility for making decisions regarding abortion.  This is perhaps easiest to see in the context of a the legal decision regarding the scope of national power: Surely a faithful Catholic judge could decide whether the constitution empowers the national government, as opposed to the states, to regulate abortion.  May a faithful Catholic judge ever decide that the law allocates the responsibility for making decisions regarding abortion to the mother?  I think that the answer has to be yes.  Suppose Roe and Casey were overruled, and a particular state legislature decided not to limit in any way certain early abortions. If a case were nonetheless brought seeking to block such an abortion, surely a faithful Catholic judge could decide that there was no law authorizing the bringing of such a legal claim.  As Justice Scalia has noted, “States may, if they wish, permit abortion-on-demand.” Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Scalia, J., dissenting).

The public in general, and litigants in particular, are entitled to have judges who will decide cases in accordance with the law rather than in accordance with their own moral or religious convictions.  The law requires disqualification if a judge “has a personal bias” or if “his impartiality might reasonably be questioned.” 28 U.S.C. § 455.  If a judge knows that his religious convictions permit him to reach only one possible result in the case, he should disqualify himself.  If, regardless of the law, a judge’s moral convictions require that he can only decide a case one way, he cannot decide the case at all. See Garvey & Coney,  81 Marq, L. Rev. at 334 (stating that a judge who cannot give the judgment which the law requires must recuse); id. at 339 (stating that a judge who cannot consider the possibility of imposing a death sentence should recuse from conducting a sentencing hearing in a capital case).

An abortion clinic once unsuccessfully sought the disqualification of Judge Noonan from a case, contending that his “fervently-held religious beliefs would compromise [his] ability to apply the law.” Feminist Women’s Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995).  He denied the motion, evidently confident that he could decide the case in accordance with the law.  For if his religious convictions had precluded him from deciding the case in accordance with the law, he would have been obligated to disqualify himself.  We can be sure that if the Church takes the position that a faithful Catholic judge must either decide a case in accordance with his religious convictions or recuse himself, there will be many more recusal motions targeted at Catholic judges.  The unfortunate result could be the stilling of judicial voices such as that of Judge Noonan, who wrote eloquently about the constitutionality of a law prohibiting the promotion of suicide. Compassion in Dying v. State of Washington, 49 F.3d 586 (9th Cir. 1995).   And I do not think that it will do (although some might find it tempting) for a judge to decide the legal merits of the case and then recuse only if, in his view, the law calls for a decision at variance with his religious convictions, but stay in the case if his legal view coincides with his religious convictions: The point of disqualification is to prevent improper influences on the legal decision in the first place.  Indeed, Judge Noonan closed his opinion by emphasizing that the ”compass of a federal judge . . . is the Constitution of the United States.” 49 F.3d at 594.

For faithful Catholic judges (particularly inferior federal judges who believe that Roe was wrongly decided), it must be extraordinarily painful to decide a case involving abortion.  Indeed, recusal might well be a personal relief.  But abandoning the field to those without religious objections to abortion is hardly well calculated to make the law more sensitive to the sanctity of life.   And if it is never morally permissible for a faithful Catholic judge to decide cases in accordance with Roe and Casey, then faithful Catholic judges may well have no role in deciding the constitutional status of abortion.   If Justice Kennedy is required to recuse himself in abortion cases, it seems to me that Justices Scalia and Thomas are too.  Put bluntly, if as a matter of Catholic morality, faithful Catholic judges can never decide cases in accordance with Roe and Casey, then, as a matter of law, I don't think that they can participate in cases that limit or overrule Roe and Casey either.

I would be happy to receive comments, corrections, criticisms, and suggested readings -- including general works to help me understand better the workings of the distinction between formal and material cooperation.

Canon 915: Withdrawal of Communion, Protecting the Sacrament, and Avoiding Public Scandal

Patrick Brennan's reminder that the canon law rules regarding admission to communion concern the sacramental life of the Church is important. At the same time, however, the question cannot be separated entirely from what an individual's "performance in a legislative or judicial role should be." Canon 915 is, as Professor Brennan notes, designed "to protect the ecclesial life of the whole Catholic communion." That includes the responsibility of the bishop as pastor of the diocese to be concerned about the salvation of the soul of the person who asks for communion as well as the souls of the entire congregation.

Thus, while Canon 916 directs the individual to ascertain his or her own suitability for the Eucharist as a general matter, Canon 915 directs affirmative withholding of communion in certain circumstances. The Church places original responsibility on each individual, generally assumes good faith on the part of congregants, and, thus, ordinarily offers communion to all who come to the altar at Mass. The Church, however, always has retained and sometimes has exercised the power and obligation to deny admission to Holy Communion when scandal to the faithful would occur because of the public character of the Eucharist and the notoriety of the supplicant.

In the case of the pro-abortion politician, the danger of scandal to the faithful is manifested precisely from his or her public behavior. Thus, the public witness of the Church for life, the public repudiation of a pro-abortion politicians of the Church's witness, and the rules for admission to the Eucharist are interwined. The political effect of withholding of communion from politicians who break communion with the Church, whether segregationists in the 1950s or pro-abortion politicians today, is, to be sure, not the primary or animating purpose of the ecclesial action, but neither is it unintended or incidental, as it bears on the avoidance of scandal and the Church's public witness. (Although I may address it in a future posting, I deliberately have limited this posting to the question of the Catholic politician rather than the Catholic judge, as the judicial role raises further complications.)

Below I set forth an excerpt from an article that I wrote with my University of St. Thomas colleague, Charles Reid, that was published last fall in the Catholic Lawyer. [Please note that this is only an excerpt of a larger work, that addresses other elements of this question, and that I have omitted the footnotes. The full article may be accessed at this link

* * *
Excerpt: Gregory C. Sisk & Charles J. Reid, Jr., Abortion, Bishops, Eucharist, and Politicians: A Question of Communion, 43 Catholic Lawyer 255, 84-87 (2004):

"Canon 915 of the Code of Canon Law, which states the bases for denial of admission to Holy Communion, sets forth four signals of the nature of the sin justifying pastoral action: (1) obstinacy, (2) persistence (sometimes translated as “perseverance”), (3) manifestness, and (4) gravity.

First, the sin is obstinate if the person, despite the objective wrongfulness of the proposed conduct through the Church’s teaching or the intrinsically evil nature of the act, nonetheless is adamant in carrying through with the deed. Thus, as discussed above, pastoral teaching and counseling ought to precede any resort to denial of communion, so as to ensure that the person involved has been instructed in the Church’s unswerving solicitude for innocent human life and how this relates most forcefully to legal protection of the unborn. If, however, the person refuses or is unaffected by pastoral counseling, the inherent evil of abortion leaves no room for the plea of ignorance as to the wrongfulness of the destruction of the unborn. In any event, it can hardly be doubted that the Church’s teaching on this issue has been clearly and regularly stated, leaving no one confused as to where the Church stands.

Second, a person persists or perseveres in sin when the wrongful act is part of a pattern of behavior, that is, it “endures in time.” With respect to a politician, then, the question is not one of maintaining some type of “score-card” or evaluating each individual legislative vote on abortion in isolation. Rather, the question is whether the politician has welded in public life an unbroken chain of support for abortion rights and opposition to measures to restrict abortion on demand. Still, a politician may not excuse a consistent “pro-choice” voting record by protesting that the right to abortion is constitutionally fixed and thus he or she is a helpless spectator on the matter. As Pope John Paul II wrote in his Encyclical Evangelium Vitae: “[W]hen it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and lessening its negative consequences at the level of general opinion and public morality.”

Third, the sin must be manifest before withdrawal of communion is directed. The word “manifest” could either be read to modify the gravity of the sin, that is, meaning that the gravity of the sin must be obvious, as having reference to the public nature of the sin, or both. To the extent that it is an adjective attaching to the gravity of the sin, the manifest evil of abortion, and the legal regime that licenses it, has already been discussed in the first point above. To the extent that it may be argued that it is a qualifier as applied to this situation, that is, that the wrongness of supporting abortion rights is different in kind from the evil of directly procuring an abortion, that point is discussed next. In the context of politicians and abortion, the word “manifest”—having a plain meaning consistent with scriptural use of being visible and evident—implicates the public nature of political advocacy or political action. As Cardinal Joseph Ratzinger wrote to the American bishops, a politician’s cooperation with this evil is made manifest by “consistently campaigning and voting for permissive abortion and euthanasia laws.”

Indeed, it is that very public aspect of a Catholic politician’s rejection of fundamental Church teaching that so poignantly creates scandal for the faithful. As the Pontifical Council for Legislative Texts declared, “the reception of the Body of Christ when one is publicly unworthy constitutes an objective harm to the ecclesial communion; it is a behavior that affects the rights of the Church and of all the faithful to live in accord with the exigencies of that communion.”

Fourth, the sin must be grave, that is, a weighty matter and not a small step aside from the narrow way of salvation. It cannot be gainsaid, and indeed canon law is emphatic on this point, that procuring an abortion is a matter of grave sin. Is a political act that facilitates a deluge of abortions of the same kind and degree? Certainly, it cannot be doubted that for the politician who effectively if not explicitly advocates abortion rights as a positive social good, welcoming endorsements from entities that are directly involved in performing abortions, the advocacy and the manifestly grave evil that is certified are closely tethered together. For a politician who professes reluctance and hesitation about abortion rights, but has not yet fully embraced the mission of protecting innocent human life, the pertinent question will be the sincerity of expressed concerns, as manifested by clear public statements and concrete actions that work against the culture of death, as well as evidence of a continual progression toward more affirmative support for unborn life.

In sum, when a public official uses political power to facilitate the annihilation of the unborn, or deliberately and calculatedly refuses to exercise governmental authority to prevent it, the argument that Church discipline should attach is a quite plausible, if not ineluctable, interpretation of canon law. Indeed, if each individual is free to claim Catholic affiliation when comfortable or advantageous, while assuming a license to emphatically and publicly reject Catholic teaching when expedient, without any fear of rebuke or discipline, then the witness of the Church to the larger society on matters of fundamental human rights could be undone."

Greg Sisk

Is Turley right?

Reader Albert J. Brooks wonders whether Jonathan Turley is correct in asserting that Roberts' stated need to recuse himself in a certain class of cases makes him an inappropriate nominee:

The Constitution and federal law provide for a Supreme Court composed of nine justices. Obviously there will always be unforeseen situations (illness, etc) when one or more Justices can't sit in decision on a case. And there are other cases that could not have been foreseen when the Justice was appointed in which he or she cannot sit due to a conflict of interest.

But when a Justice, for whatever reason and with respect to whatever issue, states ahead of time that he will recuse himself on that issue, is it appropriate or even permissible for the President to nominate and the Senate to confirm the Justice; essentially committing to a Supreme Court of 8 Justices on that particular issue?

Are we entitled to Justices who'll interpet and apply the Constitution and the laws of the United States? And is a Justice who'll commit to doing so, either in light of or without regard to his or her morality, preferable to a Justice who will simply "sit out" some tough cases?

Rob