Mirror of Justice

Justice Ginsburg on the five male Justices' "blind spot" in Hobby Lobby, and the influence of daughters on their fathers

Justice Ginsburg's recent interview with Katie Couric is getting a lot of attention. One Yahoo! write-up focuses entirely on Justice Ginsburg's dissent in Hobby Lobby. The accompanying five-minute clip is worth watching. One of the more interesting exchanges was Justice Ginsburg's expressed belief that the "five male justices" (in the words of Couric's question) had a "blind spot" (Ginsburg's words, repeated by Couric, and affirmed by Ginsburg) in Hobby Lobby. The same five justices also had a blind spot, Justice Ginsburg volunteered, "in Lilly Ledbetter's case." (Transcript of exchange below the jump.)

This kind of identity-based attribution is problematic in its own right. Think about how this might work in reverse. There were parties on both sides of what Justice Ginsburg calls "Lilly Ledbetter's case." Should the other party have been worried that Justice Ginsburg would be partial to Lilly Ledbetter because the two are women? I don't think that would make too much sense (as opposed to worrying about Justice Ginsburg's perception of the merits because of her ideology and jurisprudence). Would it not be offensive to attribute Justice Ginsburg's Ledbetter vote to a "soft spot" for women, in a manner analogous to Justice Ginsburg's attribution of the Hobby Lobby majority's decision to a "blind spot" for women? Of course it would. 

Justice Ginsburg's comment on the five male Justices in Hobby Lobby also reveals a couple possible blind spots of her own. One comes from her Supreme-Court-centric view of the issues in the case. Numerous female federal judges have entered injunctive relief of one sort or another for plaintiffs challenging the contraceptives mandate. What explains their votes? Is the reasoning of Justice Samuel Alito and his brethren in the Hobby Lobby majority any better or worse, for example, when prefigured by the reasoning of Judge Diane Sykes (7th Cir.) or by the analysis of Judge Lee Rosenthal (S.D. Tex.)?

Another apparent blind spot emerged in Justice Ginsburg's description of the legal basis for Hobby Lobby. It is easy enough to pass off as a minor slip her characterization of the decision as involving the "constitutional right" of employers to act as Hobby Lobby did. But "it's just a verbal slip" became less likely when Justice Ginsburg went on to say that the majority had incorrectly interpreted the Free Exercise Clause. Does Justice Ginsburg have a blind spot for RFRA and the congressional judgment embodied in that super-statute? That statute, and not the Free Exercise Clause, is the basis for the Hobby Lobby decision. 

Having disagreed with the gist of Justice Ginsburg's discussion of Hobby Lobby, I would like to end on a note of partial agreement. As the father of three daughters, although not a federal judge, I am sure Justice Ginsburg is right, as a general matter, that "daughters can change the perceptions of their fathers." I am less certain, though, about her deployment of that assertion in this context. Justice Ginsburg may have been thinking about this recent paper by Adam Glynn and Maya Sen. Their analysis of votes by federal circuit court judges indicates that, in their words, "conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion than judges who have only sons."

As with much empirical research on lower court judges, it is unclear (at best) whether the results can be used to explain the behavior of Supreme Court Justices. But if we're going to go down this road, it may be worth noting that four of the five justices in the Hobby Lobby majority have daughters. Justice Scalia alone has more daughters (four) than all four dissenting justices combined (three). Chief Justice Roberts, Justice Kennedy, and Justice Alito each have one daughter. 

 

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More on Embassy to the Holy See Roundtable

Yesterday I blogged about the Roundtable Discussion co-hosted by the Pontifical Academy of Sciences, Global Freedom Network, and the U.S. Embassy to the Holy See.  More information has become available about the content of that important meeting which the Embassy described as follows:

[T]he Embassy was proud to co-host with the Global Freedom Network and the Pontifical Academy of Sciences a digital video conference with Luis CdeBaca, U.S. Ambassador-at-Large to Monitor and Combat Trafficking in Persons, to discuss this year’s U.S. Department of State's Trafficking in Persons report. Over 40 representatives from the Vatican, Embassies to the Holy See, NGOs, and media outlets were present to learn about the report and talk about how to improve and increase anti-trafficking efforts.

 

As I mentioned in the earlier post, this meeting exemplifies one of many efforts to bring together different stakeholders to discuss and combat one of the most pressing moral and legal issues of our time.  Of particular interest to MOJ readers may be the comments of Bishop Marcelo Sánchez Sorondo.  Among other things, he comments on this interplay between an overwhelming social problem and the potential for defeating it when religions, governments, and the private sector actors find common ground and act:

Because of the human and moral scandal they mean and interests involved, which lead to pessimism and resignation, many international institutions have turned their backs. This is why the 2014 TIP Report is so important, which we can say was especially motivated by President Obama’s visit to Pope Francis, as confirmed one of the opening photos.

We must thus be grateful to Pope Francis and to President Obama and to Secretary of State John Kerry for identifying one of the most important social tragedies of our times and having enough confidence in democratic institutions to instruct them to be responsible to spot human trafficking, engage our communities, and commit to take action. As you know, after our November workshop, we decided to tackle this issue by founding an interreligious partnership called the Global Freedom Network, which you can read more about on our website www.gfn2020.org

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As religious people we can repeat the words of Pope Francis during the canonization of the Mexican St Guadalupe García Zavala, “this is called 'touching the flesh of Christ'. The poor, the abandoned, the sick and the marginalized are the flesh of Christ. And Mother Lupita touched the flesh of Christ and taught us this behaviour: not to feel ashamed, not to fear, not to find 'touching Christ’s flesh' repugnant. Mother Lupita had realized what 'touching Christ’s flesh' actually means”. Pope Francis’ words are a clear response in the light of Jesus Christ’s message to this new form of contemporary slavery, which constitutes an abhorrent violation of the dignity and rights of human beings.

 

The full text of the Bishop’s remarks, as well as those of U.S. Ambassador to the Holy See, Ken Hackett and U.S. Ambassador At Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca,  can be found here and are definitely worth the read. 

Human Trafficking: Responding to the Pope's Appeal

Today is the first UN World Day Against Trafficking in Persons.  To commemorate the day, the U.K. Ambassador to the Holy See, Nigel Baker, has blogged about a roundtable hosted by Pontifical Academy of Sciences, the Vatican-based Global Freedom Network (an initiative of Pope Francis and Archbishop of Canterbury Justin Welby) and the U.S. Embassy to the Holy See.  He has entitled the piece, “Human Trafficking: Responding to the Pope’s Appeal.”  

 

Teaching, writing, and studying Human Trafficking can be a dark subject matter.  This was underscored for me this summer when I taught my Human Trafficking seminar every day in Catholic University Law School’s Rome Human Rights Program – as opposed to once a week as in a regular semester.  I saw that the material became a bit overwhelming to these young adults in the class when faced with such a volume of information at such a fast pace.  It is often difficult to see anything positive in the field.  Yet, this post struck me for two reasons. 

 

First, it is a nice reflective piece on concrete ways governments, religious institutions, and private entities can come together to address a complex social issue.  It is no surprise to me that central in this event was the U.S. Ambassador at Large to Monitor and Combat Trafficking in Person, Luis CdeBaca.  He has done an excellent job of recognizing and including in this movement the work of religious organizations and private entities.   

 

Second, and somewhat unrelated – it struck this Irish woman how amazing it was that a British official was publicly posting a reflection on how we all need to respond to a pope’s appeal for action.  It is not only that one could not have imagined such an act 20 years ago.  One could not underestimate the tension between Catholics and non-Catholic in Britain - less than 7 years ago former British Prime Minister Tony Blair was called a “fool” for converting to Catholicism. 

Yet, today we see unity from across social groups behind this abolitionist movement as reflected in this blog piece.

Therefore, notwithstanding the difficulty in working in this area, there are small rays of hope that great social challenges can be overcome…and Catholic legal and social thought is playing a role.

Sub ubi?

One of the results of MOJ's recent move to the Law Professor Blogs Network is that now a picture of men's underwear for sale often impinges on the retained (and beautiful) image of Our Lady Mirror of Justice.  Perhaps this is the (unintended) application of the schoolboy's Latin pun "semper ubi sub ubi"?  

Addressing the Concerns of Adjunct Faculty

Faced with demands by adjunct faculty to unionize, a number of Catholic colleges and universities have argued that they are not subject to NLRB jurisdiction, claiming an exemption as a "religious employer."  In a piece I wrote for Pepperdine's symposium on The Competing Claims of Law and Religions a couple of years ago, I suggested that, in the case of adjunct faculty, NLRB oversight was not likely to create the kind of entanglement that exemption was concerned with.  I also expressed concern about Catholic institutions of higher education attempting to use the exemption as a shield allowing them to tread adjuncts in ways inconsistent with Catholic social teachings.

Faced with efforts by adjunct faculty to unionize, the University of St. Thomas took a different approach.  University President Julie Sullivan, expressed sympathy for the position of adjuncts, but explained why she thought unionization was not the best way to promote the interests of adjuncts and the university.  Her arguments were apparently persuasive: The NLRB just certified the results of the election that was recently held: 136 opposed and 84 in favor of unionization.

In the immediate aftermath of the the certification, President Sullivan sent an e-mail to all adjunct faculty outlining her plans to address the top-level adjunct faculty priorities identified over the past year.  These include creation of a new Adjunct Faculty Task Force who will work toward better integrating adjunct faculty into the univesity and providing them with a variety of participation options, providing adjunct representation on the faculty Senate, develop proposals for increasing adjunct faculty salaries and working to provide ways for adjunct faculty to participate in the university's benefit programs.

Whether all of this comes to fruition remains to be seen, but it is an enormous step in the right direction.

Civil Religion and the First World War

Yesterday was the centenary anniversary of the beginning of World War I. On July 28, 1914,  one month after Archduke Franz Ferdinand of Austria was assassinated, the Austro-Hungarian empire made its first moves against Serbia. The Great War would end more than four years later.

This weekend, I visited the Museum of Fine Arts in Boston, which was hosting a very fine exhibit of American World War I posters. I was struck by the powerful imagery of civil religion in many of them. Here are two exhorting the purchase of war bonds that stood out to me as particularly representative of the genre:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

And this afternoon, to remember the War, Mark Movsesian and I visited Flag Pole Green in Queens, New York, which has this lovely memorial to the men of Queens who died in the War:

Just a few fragments of civil religion–that perennial American socio-political coagulant–in memory of the war to end war.

Frum on Ryan's Anti-Poverty Proposal in a Time of "Pervasive Economic Insecurity"

David Frum, the at The Atlantic, joins others in welcoming Paul Ryan's anti-poverty proposals as an important step in returning Republican political leaders to serious discussion about how to deal with poverty. But Frum thinks the compassionate conservatism of the early Bush II years--which Ryan's proposal so far largely resurrects--won't be adequate for today's "more difficult [economic] circumstances," in which long-lasting unemployment is less attributable to bad personal decisions and social environments than it was, and more attributable to broad structural features of the economy:

In 1999-2000, it seemed realistic to draw a sharp line of distinction between the vast majority of adults willing and able to work full-time—and thereby earn a living somewhere north of the poverty line—and the small minority of adults whose bad choices or bad situation rendered them dependent on public assistance. But for half a decade now, that distinction has looked blurry. The specific problem of poverty among those who don’t work full-time is no longer so easily separated from the broader problem of pervasive economic insecurity among those who do.

Frum makes several suggestions, in the vein of Douthat/Salaam "reform conservatism," for how conservatives can compete in the upcoming policy debates. (Among other things, support the earned income tax credit and mother's allowances; oppose minimum-wage raises, universal pre-K education, and immigration reforms that would keep the market for labor soft.)

The poise and patience of Ryan Anderson

I marvel at Ryan Anderson's poise, patience, and brilliance in defending marriage as a conjugal partnership--which is to say, defending marriage--in the face of hostile critics.

http://dailysignal.com/2014/07/25/ryan-t-anderson-responded-gay-man-wants-redefine-marriage/ 

Demagoguery

I was just reading about how the cause for the canonization of Pope John Paul I is advancing in Rome.  This on the heels of the announced beatification of Pope Paul VI in October and the recent canonizations of Pope John XXIII and Pope John Paul II.  Only Pope Francis and Pope Benedict XVI among the pontiffs to reign during or after the Second Vatican Council are not either declared saints or current candidates for sainthood.  Meanwhile, Pope Francis has reminded us that the cause for Ven. Pope Pius XII, who lived and reigned before the aforementioned Council, is stalled, and it was only recently that the Vatican website actually acknowledged the fact that Pope Pius X, who also blessedly lived and reigned before the aforementioned Council, was declared by the Church to be a saint (in 1954).  My understanding is that Sarto became a  saint even while living in the Papal Apartment, the high cost of frugal living perhaps not appealing to the greatest Pope of the twentieth century.    

R. George and J. Doig concluding essay in marriage debate

My friend and colleague Jameson Doig and I concluded our week long Public Discourse debate on marriage with a joint essay, posted on Friday of last week:

http://www.thepublicdiscourse.com/2014/07/13532/