Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, October 24, 2014

"Measured by the low standards of the desperate, the Supreme Court's 2013-14 term was on the whole a spectacularly good one."

That is the assessment of Michael Stokes Paulsen, writing in the November 2014 issue of First Things -- 2014 Supreme Court Roundup: An Explanation of the Court's Affirmations of Our Right Not to Go Along. (HT: How Appealing)

A few morsels below, but one must read the whole thing not only to assess Paulsen's analysis but also to appreciate his inimitable prose:

The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.


It is a parlous state of affairs when we must depend on the Supreme Court as the bulwark of our most vital natural rights and civil liberties—freedom of religion, freedom of expression and group association, freedom of conscience, the rights to live, to work, and to raise a family. The Court has not always, or even very often, done well on this score. With distressing frequency, it has performed poorly, shortchanging rights plainly written in the Constitution and inventing illegitimate ones nowhere to be found in the text. The Court tends to bow to political pressure and blow with prevailing cultural and popular winds.

Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, arelief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.


A measure of the success of the past year’s term is to contemplate what things would have looked like if the Court had gotten these cases wrong. Religious persons, groups, and businesses could be coerced to support and pay for abortion drugs by administrative fiat. Men and women who wish to counsel pregnant women against abortion could be prevented from doing so on public property near clinics. Citizens could be forbidden from ­financially supporting as many political candidates as they chose. Politicians could sue, or threaten to sue, citizens to punish them for expressing critical views, and effectively shut down opposition. Workers could be forced by law to support political causes with which they disagree. The Court held the line against such outcomes.

October 24, 2014 in Walsh, Kevin | Permalink

Why I am also #waitingforSutton

Earlier this week, I began to notice #waitingforSutton on Twitter. And one morning, when the Sixth Circuit posted links to its opinion a little later than expected, I was surprised to find myself rather eager to read whatever opinions might be coming in the Sixth Circuit's same-sex marriage cases. This is due in no small part to Judge Sutton's presence on the panel.

Many who attended or heard the audio of the August 6 oral arguments believe that Judge Sutton's vote one way or the other will be decisive. That assessment seems accurate, as is the belief that the Sixth Circuit is less likely to conclude that the Fourteenth Amendment to the Constitution of the United States requires states to redefine marriage to include same-sex couples than the Fourth, Seventh, and Tenth Circuits have proven to be. 

There are therefore a couple of obvious reasons why people are #waitingforSutton. A Sixth Circuit decision upholding state laws would create a circuit split and almost certain cert grant. And the decision could come any day now. (Oral arguments were August 6, and according to the Sixth Circuit Appellate Blog, "the Sixth Circuit's average time between argument and decision is 2-3 months ....").

These are not the only reasons, though, and for me at least, not the most important. Judge Sutton is an excellent judge and an excellent writer. As I've said before, Judge Sutton's opinions are "conversational and accessible to an intelligent lay reader." Whatever the outcome Judge Sutton's opinion ultimately supports, it is unlikely to convey the "disdain for lawyers' arguments or contempt for legislators and voters" that comes through in Judge Posner's opinion in Baskins v. Bogan.

I do not expect Judge Sutton to vote to hold the states' marriage laws unconstitutional. But if he were to do so, I would expect his opinion explaining that vote to be more persuasive than those that have been released thus far.

If, as is more likely, Judge Sutton votes to uphold the states' definition of marriage to require one man and one woman, and if the Supreme Court later holds to the contrary, my hope is that his opinion will be one that I can assign to serve the same functions as when I assign Judge Friendly's pre-Roe draft abortion opinion. A sound circuit court opinion before a bad Supreme Court decision can show a path not traveled in a different way than a powerful dissent.


For those seeking insight into Judge Sutton's thinking about constitutional law and judging more generally, here are some extrajudicial writings:

 Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) (HT: Originalism Blog)

 Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) (HT: Originalism Blog)

Barnette, Frankfurter, and Judicial Review (Marquette Lawyer, Fall 2012, pp. 13-23)

What Does--and Does Not--Ail State Constitutional Law, (Kansas Law Review, Vol. 59, pp. 687-714, 2011)

A Review of Richard A. Posner, How Judges Think (Michigan Law Review, Vol. 108 pp. 859-76, 2010)

October 24, 2014 in Walsh, Kevin | Permalink

Thursday, October 23, 2014

The Hidden Death Sentence

Pope Francis has been making the news (again!), this time for his comments at a private audience with members of the International Association of Penal Law. His comments—which reveal a sophisticated understanding of many aspects of criminal justice—covered a wide range of issues, including overcriminalization of the disenfranchised (and underpunishment of official corruption), abuses of pretrial detention, inhumane prison conditions, and the role of the media in driving public demand for “vengeance.”

In the midst of a treasure trove of richness, the comment that has attracted the most media attention so far is Pope Francis’s comparison between the death penalty and sentences of life imprisonment. As reported by Vatican Radio, in his comments today the Pope invited

[a]ll Christians and people of goodwill . . . to fight not only for the abolition of the death penalty . . . in all of its forms, but also for the improvement of prison conditions in the respect of the human dignity of those who have been deprived of freedom. I link this to the death sentence. . . A life sentence is a death sentence which is concealed.”

Yes! That!

In recent years, the death penalty has been the subject of widespread attack from the Catholic community in the United States, on the ground that it is unnecessary for the protection of the public and undermines the “dignity of the human person.” Writings on the subject are nuanced and voluminous but, simply put, the critique is that by “offer[ing] the tragic illusion that we can defend life by taking life,” the death penalty “diminishes all of us.”  I don’t disagree one bit.

Capital lawyers often argue, and courts sometimes agree, that “death is different” from any other punishment, and that capital sentences should therefore be subject to greater scrutiny and held to higher Constitutional standards than sentences of natural death behind bars—that is, sentences that impose life, or de facto life, sentences on convicted individuals. Because capital sentences are so immediately and tangibly final, they deserve a scrutiny that terms of years don’t warrant. Or so the argument goes.

But I have often found myself troubled when death penalty abolitionists argue not only that capital punishment is wrong, but that the morally-appropriate alternative is a sentence of life without the possibility of parole. While state-sanctioned execution is the harshest penalty available under the law, sentences of natural death in prison have a brutality of their own, imposing the certainty of  death behind prison walls, often preceded by decades of isolation. Love, children, home, family, nature, work, sunshine—these basic natural goods, which define the experience of human life for the non-imprisoned, are restricted or eliminated entirely by the fact of imprisonment.

Certainly, loss of liberty is required and deserved in many cases involving serious crime, but courts often hand out sentences of imprisonment in super-size quantities that leave no room for redemption. As a result, young people grow old behind bars, their loved ones move on or die, and loneliness defines their existence. Almost 50,000 people  are serving sentences of life without parole in the United States. That number does not  include those serving de facto life sentences by virtue of lengthy terms of years, or the 110,000 people serving parole-eligible life sentences (many of whom will never be released under current restrictive parole policies). Despite the scale of sentences to life imprisonment, Catholic conversations about punishment in the U.S. have largely ignored those sentenced to die behind bars who are not on death row.

Today’s brief comments by Pope Francis don’t begin to resolve hard questions about how long sentences should last, or what kinds of crimes deserve what kinds of punishment.  (The Pope observed in his comments today that life sentences were recently repealed in the Vatican Criminal Code; however, the maximum penalty under the Code stands at a not-insubstantial 35 years.) What the Pope did do today was remind us that our criminal justice system has  discarded and forgotten many people in ways that do not comport with their inherent dignity and worth—and remind us that we are called to do something about it.

October 23, 2014 | Permalink

Law and Religion Moot Court at Touro

Check this out.   This Spring, Touro is hosting its Second Annual National Moot Court Competition in Law and Religion.  The line-up of judges looks excellent.  This is a great opportunity for law students!

October 23, 2014 in Garnett, Rick | Permalink

Bishop Kevin Rhoades on spousal benefits, religious freedom, and Notre Dame

Bishop Kevin Rhoades, of (my own) the Diocese of Ft. Waye-South Bend, has this column in the weekly issue of Today's Catholic, in which he discusses, among other things, the recent court decisions involving challenges to states' marriage laws and those decisions' implications for the religious freedom of Catholic institutions.  He also addresses, in a thoughtful way, the recent announcement by the University of Notre Dame that it will provide spousal benefits to all legally married spouses of employees.

I should note that some critics of Notre Dame's move have suggested that it is inconsisent (or worse!) for Notre Dame to agree to "comply with the civil law" when it comes to providing benefits to all those who are, under Indiana law, "spouses" while at the same time challenging the contraception-coverage requirements in the Affordable Care Act.  I  do not quite see the inconsistency, though.  It is true, certainly, that in both cases, there is the possibility of causing scandal and demoralization to those who care (as we all should) about Catholic institutions' (and especially Notre Dame's) authentic Catholic character and mission.  And, in both cases, the relevant "civil law" -- the HHS mandate, or the Seventh Circuit's decision invalidating Indiana's marriage law -- is vulnerable to criticism as being unsound.  

That said, and for starters, it seems to me that the question whether it constitutes culpable cooperation with wrong to provide spousal benefits through a benefit plan (that is, a contract) that uses the term "spouse" and defines that term with reference to Indiana law might not be the same as the question whether providing coverage for the objectionable "preventative services" constitutes such cooperation.  (In my own view, the nature of the burden imposed by the HHS mandate on Catholic institutions is best framed not in terms of cooperation, but in terms of mission, character, and authenticity.  After all, a law can burden religious exercise even if it does not compel or require wrongdoing.)  What's more -- and not to sound like an Unfrozen Caveman Lawyer -- there is the fact that RFRA is available to challenge the mandate while it would not, I assume, be available as a defense in a benefits-contract dispute between the University and one of its employees.  (I assume that state and federal law would -- at least for now -- allow the University to change prospectively the terms of its benefits-plans, but I have not studied the issue.)          

The University of Notre Dame -- where I am pleased and blessed to teach, study, and live -- aspires to be a distinctively and faithfully Catholic research university that is interesting and excellent precisely because of, and note despite of, the fact that it is distinctively and faithfully Catholic.  This aspiration means -- necessarily and unavoidably -- that the University will be called, sometimes, to decisions and actions that put it at odds with the certain features of our culture.  It's not easy or comfortable, especially for an intellectual community that -- quite correctly -- wants to be an engaged force for good in the world, to resist or dissent from that which either elites or political majorities declare correct or mainstream but, again, sometimes witness and integrity will require it.
The regulatory and legal landscape -- in addition to the cultural environment -- for authentically Catholic institutions is, certainly, becoming more complicated and less hospitable.  Navigating that landscape, faithfully, will become increasingly difficult and will involve close decisions and fine distinctions.  Before too long, I - like Bishop Rhoades -- worry that Catholic hospitals, schools, universities, and social-service agencies will be aggressively pushed to the margins, intrusively regulated, and foolishly de-funded.  The struggle to vindicate the religious freedom of these institutions is going to intensify and its uphill angle will steepen.

October 23, 2014 in Garnett, Rick | Permalink

Wednesday, October 22, 2014

A few minor MOJ reflections on the first feast of St. John Paul II

Today's feast day celebration caught me by surprise. When I think of the man, I think "Pope John Paul II," not "Saint John Paul the Great." He was a man, a great man; and he is a saint. But to think of him as Saint John Paul the Great puts him at too much of a distance from my experience of him from a distance. And I hold on to that experience as a source of grace.


One source of experience was personal. I attended World Youth Day in Denver in August 1993 and was part of the cheering crowd that greeted Pope John Paul II in Mile High Stadium.

Another source of experience has been through his writings, particularly his encyclicals. Three that have been influential are Veritatis Splendor, Evangelium Vitae, and Fides et Ratio.

A third source of experience has been Mirror of Justice. The spirit of Pope John Paul II has inspired many contributions to this blog. (Find them yourself!)


Two John Paul II injunctions that may be particularly appropriate at this time for a blog devoted to the development of Catholic legal theory: Be not afraid! Duc in altum! 


One final thought. The opening sentence of Veritatis Splendor bears some similarities to the well-known opening lines of Gerard Manley Hopkins, S.J.:


The splendour of truth shines forth in all the works of the Creator and, in a special way, in man, created in the image and likeness of God (cf. Gen 1:26). 


The world is charged with the grandeur of God.
It will flame out, like shining from shook foil ...

October 22, 2014 | Permalink

Feast Day of St. John Paul II

Today is the first feast day of one of our newest saints, St. John Paul II.  (And, in a happy coincidence, the wedding anniversary of not one, but two MOJ'ers: me and Rick Garnett.)

To celebrate, here are some relevant links:

"Be not afraid!"

October 22, 2014 in Schiltz, Elizabeth | Permalink

Tuesday, October 21, 2014

Notre Dame Ethics and Culture Conference: Oct 30-Nov 1

The annual fall conference of the Center for Ethics and Culture at Notre Dame is a jewel in the crown of Catholic higher education. This year's conference topic, inspired by Pope Francis, is "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor." Plenary addresses will be given by Nobel Laureate James Heckman (Chicago), Cardinal Gerhard Müller (Prefect of the Congregation for the Doctrine of the Faith), Alasdair MacIntyre (Notre Dame), and John Finnis (Notre Dame and Oxford). A concluding colloquy on whether Catholic social teaching and American capitalism are compatible will include Patrick Deneen, Hadley Arkes, James Mumford, and John Tomasi. A detailed schedule is available here.

October 21, 2014 in Moreland, Michael | Permalink

Monday, October 20, 2014

The Supreme Court of Pennsylvania's messy suspension of Justice McCaffery

By a four to one vote, five out of seven justices on the Supreme Court of Pennsylvania have temporarily suspended one of their own from his judicial duties.  The court's order is here; a concurring statement by the Chief Justice is here; and the dissenting statement is here. An earlier statement of the now-removed justice and an earlier statement of the Chief Justice are here

I have not followed all of the underlying matters closely enough to have confidence in this judgment, but my impression from afar after reviewing the order, the accompanying statements, and press reports is that the Supreme Court of Pennsylvania looks worse after this order than before. Justice Todd's dissenting statement seems sensible. Chief Justice Castille's description of his colleague as a sociopath is discreditable. Judicial ethics is not defined by rules only, but also by virtues such as temperance and judiciousness.

October 20, 2014 in Walsh, Kevin | Permalink

Sunday, October 19, 2014

Susman Godfrey, the Houston subpoenas to nonparty pastors, and the utter ordinariness of burdensome third-party civil discovery

The City of Houston has filed a preliminary response to the motion to quash subpoenas it served on five nonparty pastors seeking discovery, among other things, of these pastors' sermons. Like the mayor's initial "blame it on the pro bono lawyers" defense, the response is hard to credit as anything other than a public relations move. The response removes the word "sermons," but even as amended, Houston's subpoenas are still asking for sermons and for much more.

Consider request number 4: "All communications with members of your congregation regarding HERO or the petition." Now consider the definition of "communications": "[E]very direct or indirect disclosure, receipt, transfer, or exchange of information, inquiry or opinion, however made, whether oral, visual, in writing or otherwise, including without limitation any conversation or discussion by means of letter, note, package, invoice, statement, notice, memorandum, inter-office correspondence, telephone, telegraph, email, telex, telecopies, text message, instant message, cable communicating data processors, or some other electronic or other medium."

There is no hard and fast rule at work here, but generally speaking discovery requests like these begin with the broadest claims and then narrow from there. The word "sermons" was originally in request number 12. By the time the recipient would have arrived at that point, however, it would have been obvious that even coming close to full compliance with these broad requests would take dozens of hours. If you don't believe me, take a look at request number 1 yourself.

The specific mention of "sermons" was an unforced error that allowed recipients to provide a hook that would draw public attention to the burdensome nonparty discovery requests sent by the city. But getting rid of that one word does not change the substance of the city's requests one bit. They remain as burdensome as they were from the beginning. 

An underreported angle of this whole story thus far is the nature of the legal representation provided to the city. In particular, the Mayor's "blame the pro bono lawyers" response is hard to take seriously when the pro bono lawyers include a lead counsel team from Susman Godfrey, L.L.P. The subpoena request posted by plaintiffs' counsel went out under the signature of a Susman Godfrey associate and two partners. According to Susman Godfrey's website, the more senior partner is "lead counsel for the City of Houston in its lawsuit against a Xerox affiliate for breach of contract, fraud, and other wrongdoing in connection with billing and collection for hundreds of millions of dollars of emergency medical services provided by the City's Fire Department" and also "lead counsel for the City in its multi-hundred million dollar lawsuit against actuarial firm Towers Watson for gross negligence and professional malpractice in connection with benefits under the Houston Firefighters' Relief and Retirement Fund." The other partner is a former EIC of the Texas Law Review and law clerk for Fifth Circuit Judge Jerry Smith, currently serving as "Susman Godfrey's docket partner with responsibility for staffing client engagements across our five offices." These are very capable, experienced lawyers. At least one of them is currently handling litigation involving hundreds of millions of dollars for the city. Whether Mayor Parker was previously aware of the specific wording of specific subpoenas is beside the point.  She knows full well how lawyers like these, with the kinds of practices that they have, would have approached third-party discovery in the City's HERO case. It is therefore not credible for Mayor Parker to put distance between herself and the city's litigation strategy as pursued by Susman Godfrey. The cosmetic and minuscule amendment offered by the city in its preliminary response after Mayor Parker's attention was drawn to these particular subpoenas suggests that the city's overall litigation strategy includes deliberately imposing substantial burdens on the plaintiffs' allies. 

Mayor Parker and the city's lawyers seem to have been frustrated for months by what the city's lead counsel from Susman Godfrey has termed "the public hoopla" surrounding their case. (This characterization, for example, came in an August 2014 press release.) And by the standards of the typical business litigation dispute handled by the firm, this case does seem a bit of a circus on both sides. But the dispute over "sermons" in the subpoenas is itself a sideshow against the utter ordinariness of the burdens that lawyers inflict on nonparties every day through broad civil discovery requests. When everything settles down and the culture-war commentariat moves on, one can only hope that firm judicial management will lessen the burdens imposed by Houston's requests. 



October 19, 2014 in Walsh, Kevin | Permalink