Monday, October 31, 2005
A few days ago, Tom posted the results of a survey that suggested that born-again Christians and evangelicals were more Catholic than Catholics on a host of issues including contraception and fetal stem cell research. Could it be that those who identify themselves as born-again or evangelical are likely to attend church more often and take their faith more seriously than a great number of Catholics?
A few quick thoughts in response to Eduardo's post: He writes that Judge Alito "famously authored the opinion holding the Family Medical Leave Act unconstitutional, which was reversed by the Supreme Court in an opinion by Chief Justice Rehnquist (with Kennedy, Scalia, and Thomas dissenting)." If I remember correctly, the majority opinion that Judge Alito authored (and which was, as Eduardo points out, reversed) did not "hold the [FMLA] unconstitutional," but only concluded that Congress had not effectively abrogated states' "sovereign immunity" from lawsuits for money damages under the Act. I'm not wild about the Court's sovereign-immunity line of cases, but Alito's opinion was, as I recall, a perfectly reasonable application of the relevant precedents.
Next, Eduardo notes that "Catholic voters long made up an important part of the New Deal coalition. While Catholics have no doubt grown more comfortable voting for Republicans over the past few decades, it would be hard to argue that the (potentially) five Catholic justices would be representative of the politics of Catholics as a whole." This is a good point, re: representativeness. That said, I am inclined to think that the shift in Catholics' voting practices was not just a result of Catholics growing more comfortable with Republicans, but of dramatic shifts in the positions of both parties and also of the increasing salience of "culture" and "values" issues (and of the Democrats' leftward movement on those issues).
Third: Eduardo's post raises the possible tension between the "conservativism" of Catholic Justices like Justice Thomas and Scalia (who, in my view, actually have very different judicial philosophies, and disagree more than many people realize) and the political stance of many (most?) Catholic citizens. Here's how I see it: The judicial conservativism of, say, Justice Scalia (or, I admit, me) need not be seen as in tension with the substantive left/ progressive / social-justice political commitments of many Catholics, because Justice Scalia (whatever his policy views are, and I assume they are conservative) is, for the most part, happy to leave these matters to the political process, so long as they are not pursued through legislative means that exceed Congress's powers. And, on the "social" questions, where the Church's teachings are (arguably) "conservative", it seems to me that Justice Scalia's views (both as a judicial matter and as a policy matter) are in line with most Catholics' views. Even though Catholics disagree on whether abortion should be outlawed, I expect most believe -- or, if presented with the question, would say they believe -- that it may be reasonably regulated.
In doing a public-radio interview this morning on the Alito nomination, I was struck again by how much concerning his ultimate decisionmaking on the Court might turn on his approach to precedent (stare decisis). How much deference should a justice give to past decisions, and what factors should s/he consider -- and in what order of importance -- to decide whether to adhere to or overrule past decisions?
Abortion rights are obviously a major issue in this regard. But to take just one other issue, Alito has shown some inclination to be vigorous in limiting Congress's legislative power over economic matters. For example, in a 1996 dissent in U.S. v. Rybar, he argued for striking down the federal law prohibiting the possession of machine guns (I'm not saying that he was incorrect on that; I'm just using the case to raise the issue). Would he go as far back as Justice Thomas in restricting the commerce power (doubtful), or would he be more like Scalia and Rehnquist, or Kennedy and O'Connor (who have made only moderate cutbacks)? That question could depend significantly on the extent to which, even if he thinks the Commerce Power was meant to be narrower than it's become, he nevertheless thinks many of the broad precedents should be followed as a matter of stare decisis.
Constitutional theory about stare decisis and the weigh of precedent is less well developed -- fuzzier -- than are the various theories about the substantive interpretation of the Constitution (originalism, political-process theories, etc.). And a lot of prudential calculations go into it, including, I think we ought to admit, assessments of the nation's mood (which bears some relation to, even if it's not the same as, the degree of societal reliance on a past decision, which is a reocgnized part of the analysis about whether to follow precedent). That's why some anti-fuzzy scholars like Mike Paulsen hate for precedent to play any significant role in constitutional decisions.
In our discussions about Roberts and precedent, we've mostly discussed whether Catholic moral positions on substantive questions such as abortion should override any prima facie duty to follow precedent. I'd like to ask a different question now: whether Catholic social thought has anything to offer on the question of precedent itself in law and legislation. Does the tradition have anything to say on the values of stability versus the values of getting some question right?
I'm not asking about Catholic insights on stare decisis as to Church teachings on faith and morals (where there is the argument that the Church doesn't get things wrong, or is at least guided by the Holy Spirit in ways that the Justices are not). I'm asking about Catholic insights, from the social-teaching tradition, on the issues of stability, reliance, etc., in civil matters. And could a justice be legitimately informed by Catholic thought (or religious thought, or general moral reasoning) on that general matter?
Any thoughts on this from co-bloggers or readers?
Picking up on Rick's note that Alito would make five Catholics on the Court, on most issues it looks as if Alito would be as conservative as Scalia or Thomas. For example, he famously authored the opinion holding the Family Medical Leave Act unconstitutional, which was reversed by the Supreme Court in an opinion by Chief Justice Rehnquist (with Kennedy, Scalia, and Thomas dissenting). It is worth noting, then, that, if Alito is confirmed, the five Catholics on the Court would also happen to be its most conservative five members (Roberts, Scalia, Kennedy, and Thomas, plus Alito).
This is an interesting phenomenon. After all, it was not long ago that one of the most liberal members of the Court, William Brennan, was a Catholic. And Catholic voters long made up an important part of the New Deal coalition. While Catholics have no doubt grown more comfortable voting for Republicans over the past few decades, it would be hard to argue that the (potentially) five Catholic justices would be representative of the politics of Catholics as a whole.
My colleague Elizabeth Brown responds to Rick's post defending the Bush Administration's decision to withhold funding from the United Nations Population Fund:
Rick states "The reason not to support the U.N. Population Fund is to avoid funding -- and arguably, culpably cooperating with -- intentional and unjustified homicides." He obviously believes the UNFPA is engaged, in the words of the Kemp-Kasten Amendment, of assisting the government of China in its "program of coercive abortion or involuntary sterilization." That China has a coercive program to enforce its one-child policy is not in doubt. The UNFPA, however, has strongly condemned this program and does not provide abortions or abortion-related services in China. In fact, the May 29, 2002 Report of the China UN Population Fund Independent Assessment Team of the U.S. State Department stated that "We find no evidence that UNFPA has knowingly supported or participated in the management of a program of coercive abortion or involuntary sterilization in the PRC." The press release from the NLRC from which Rick quotes was issued on July 20, 2002 and it notes that China maintains coercive measures to support its one-child policy, which is certainly true. The NLRC press release, however, does not contain any empirical evidence to refute the conclusion of the State Department that the UNFPA has not knowingly supported or participated in China's program of coercive abortion or involuntary sterilization. If the State Department's conclusion is true, providing funding to the UNFPA would not be funding or aiding evil (coercive abortions or involuntary sterilizations) as the UNFPA is not engaged in those activities and is not supporting them in China. . . .
The 2005 State Department Report on Human Rights and other studies suggest that "constructive engagement" by the UNFPA is having some positive effects in reducing the number of abortions within the 32 counties in which the UNFPA operates. According to the State Department report, the policy of the Central Government in China formally prohibits the use of physical coercion (but not economic coercion) to compel persons to submit to abortion or sterilization. The National Population and Family Planning Commission (NPFPC) of China has set up a hotline for use by UNFPA project county residents to lodge complaints against local officials who attempt to violate the law. Under State Compensation Law, citizens may sue officials who exceed their authority in implementing the birth planning policy and some individuals have exercised that right. Local officials who have used population schools as detention centers have been fired or sanctioned administratively for violating the law. The spacing requirement for parents who want permission to have a second child was removed in five and relaxed in ten of the thirty counties participating in UNFPA's Country Program V. Authorities in China continue to reduce the use of targets and quotas. Twenty-five of China's thirty-one provinces have eliminated the requirement for birth permits before married couples conceive their first child. With the passage of State Council Decree 357 in 2002, corruption related to the social compensation fees (the economic tax on additional children) has declined and the NPFPC has investigated 10,000 complaints against local officials over these fees. Other studies indicate that the number of abortions per live births has dropped in the thirty-two counties in which the UNFPA operates so that the rates are now lower [than] the number of abortions per live births in the United States. Granted these are minor steps, but they are positive steps in the right direction. . . .
If the UNFPA isn't funding or aiding China's coercive policies as the State Department concluded in 2002 and denying funding to the UNFPA in 2002 resulted in an estimated 2 million unwanted pregnancies, 800,000 induced abortions and 4,700 maternal deaths, as well as 77,000 infant and child deaths, according to the UNFPA, I am at a loss as to how the United States can continue to claim that this policy is promoting a "culture of life."
In addition to other opinions that will be discussed (most notably his dissent in Casey that would have upheld spousal notoficiation for abortion), Alito is also the author of what is currently one of the most important decisions under the Free Exercise Clause: Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999). The decision held that a Muslim police officer had a constitutional right to wear a beard as required by his faith, notwithstanding a police department rule prohibiting facial hair, because the department had already made a similar exception for officers needing to wear a beard for medical reasons (such as a sensitive-skin condition). The opinion has been highly influential in the wake of Employment Division v. Smith, the peyote case, which had rejected exemptions from law for religious conduct when the law in question was "neutral and generally applicable." Alito, in a careful opinion, wrote that the presence of the other major exemption made the department policy not generally applicable and suggested that the department regarded other interests as more important than the constitutional right of religious exercise. This is the best reading of the free exercise right, I believe, but it was not compelled by precedent. It suggests a hospitable attitude on Alito's part toward religious freedom, within the bounds of precedent and the historical purposes of the Free Exercise Clause. And as the case indicates -- and as with so many cases involving free exercise -- a hospitable attitude toward religious freedom is also a hospitable attitude toward religious and cultural (even ethnic) minorities such as Muslims.
President Bush this morning is nominating Judge Samuel Alito, of the United States Court of Appeals for the Third Circuit, to fill Justice O'Connor's seat on the United States Supreme Court. This is a fabulous choice. Few -- if any -- of his generation have the breadth and depth of Judge Alito's legal credentials and experience: he's been a mob-busting prosecutor, a deputy in the Office of Legal Counsel (the Department of Justice's brain trust), and a lawyer in the Solicitor General's office. He's also been a sitting, well regarded judge for more than a decade.
There's also this: Judge Alito will soon be the fifth Catholic currently serving on the Court. Chris Hitchens must be freaking out.
Sunday, October 30, 2005
For those readers in the Philly area on Tues, Nov.1 at 3:30pm, we will be holding at Villanova Law (rm. 30) a panel of "Reflections on the Grand Jury Report on Sexual Abuse in the Archdiocese of Philadelphia," featuring Jim Post (VLS '68), former president of the national Voice of the Faithful; Charles Zech, an economist and Director of Villanova University's Center for the Study of Church Management; and yours truly. I will be talking about some of the legal issues. Moderating all this and offering his own thoughts will be my colleague, Patrick Brennan, our Scarpa Chair of Catholic Legal Studies. As you can imagine, the Grand Jury Report continues to generate angst and recriminations running in all sorts of directions here in the Archdiocese. I should also add that on December 8, at 12 noon at the law school, Nick Cafardi, former dean of Duquesne Law, a canonist, and original member of the USCCB's National Review Board for the Protection of Children and Youth, will speak on "The Code of Canon Law and the Philadelphia Grand Jury Report: A Civil Law Critique of the Canonical Process." I will post an announcement of that program again when we are closer to the date. I suspect Patrick and I will have some posts on Tuesday's program after it's over. I see full and public discussion of these difficult and sensitive topics in a Catholic law school as essential to our mission.