Monday, October 31, 2005
Like Tom and Eduardo (and Patrick Brennan), I have my doubts about the Court's sovereign-immunity cases. (Cf., e.g., Greg Sisk). I would note, though, that the error is more than 100 years old (Hans v. Louisiana), so I'm not sure what is to be done. I am also going to persist in thinking that, although -- as Eduardo says -- the Chief Justice and Justice O'Connor came to a different conclusion, Judge Alito's interpretation and application of the relevant precedents (putting aside, as the Judge would have had do) in the FMLA case was, to my mind, more convincing than the Court's. (That is, I think the Court shrank bank from the reasonably clear implications of its own precedents).
Ann Althouse -- a specialist in these matters -- appears to agree with me ("[Alito's opinion] is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. . . . Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong."
But put all that aside (for now). Eduardo writes:
More importantly, though, it seems to me that there is an inconsistency between Catholic Social Teaching, which advocates a preferential option for the poor and oppressed and is broadly sympathetic with government interventionism in the exercise of that option, on the one hand, and the advocacy of the broadest possible application of doctrines (constitutional and otherwise) that make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process.
This is an important claim. And, I disagree with it -- unless, by "broadest possible application" Eduardo means "unreasonable" or "incorrect."
The Constitution's structural and enumerated-powers features are judicially enforceable, in my view, and a judge committed to the rule of law should -- without apology -- enforce them. That these features are (reasonably and in good faith) thought, by some, to "make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process" does not, in my view, create any tension between Catholic teaching and the robust, meaningful enforcement of these features. If our Constitution is law, and if part of that law is a prohibition on the purported exercise by Congress of certain powers denied to it by that law, then I do not agree that Catholic teaching should be thought of as pushing judges toward under-enforcing that law, in order to ease the way for what some will regard (but others will not regard) as "effective legislative solutions."
So, when Eduardo writes:
I think similar arguments could be made about a fairly direct connection between judicial doctrines embraced by Scalia, Thomas, et al. and substantive policy results on issues of immense concern to Catholic Social Teaching. Unnecessarily reading limits on congressional power for all they're worth seems to me to be at least in tension with the "substantive commitments . . . of many Catholics" on a great many issues.
This is not the time to consider whether -- even if Eduardo is right here -- the doctrines embraced by (say) Breyer, Brennan, et al. (e.g., the notion that the Constitution authorizes Justices to invalidate abortion-related measures that strike the Justices as inconsistent with their own understanding of the demands of the mystery of the universe; or the notion that the Establishment Clause is violated by the indirect flow of public funds to parochial schools) threaten at least as much as Scalia's views "substantive policy results on issues of immense concern to Catholic Social Teaching." My point here -- or, my claim -- is that it is not "unnecessar[y]" to "read limits on congressional power for [what] they are worth." In my view, a meaningful commitment to the rule of law, under our Constitution, demands that Article I be taken as seriously as, say, the First or Fourteenth Amendments.
Finally, I think Eduardo's charge that Judge Alito "support[s] . . . the right of employers to discriminate against those suffering from AIDS" is a bit strong. If I recall correctly the case to which Eduardo refers, Judge Alito was interpreting a statute, not expressing any "support" for discrimination. More generally, though -- as my fellow MOJ-ers have probably tired of hearing me say -- I do not concede that the policies favored by "judicial and political conservatives" are any more likely than those favored by judicial and political liberals to be in opposition to CST, reasonably understood and prudentially applied.
Of course -- and I hope this goes without saying -- I am delighted (notwithstanding our disagreement on these few points) that Eduardo has joined the Mirror of Justice, and I look forward to many more conversations and exchanges like this.