Mirror of Justice

"Law's Abnegation" at Villanova Law

I am pleased to announce that MOJ's own Adrian Vermeule, John H. Watson Professor of Law at Harvard Law School, will deliver the keynote address at the annual John F. Scarpa Conference on Law, Politics, and Culture to be held at Villanova University Charles Widger School of Law on Friday, September 21, 2018.  The conference will focus on the topics and themes of Prof. Vermeule's Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press, 2018). There is something for everyone in Vermeule's searching account of law and how it works under our Constitution today.   

 

Details about the conference will be published in due course.  In addition to Prof. Vermeule, other speakers at the conference will include:

 

-- Jeff Pojanowski, Professor of Law, University of Notre Dame

-- Edward Rubin, University Professor of Law and Political Science, Dean emeritus, Vanderbilt     Law School

-- Colleen Murphy, Professor of Law and Professor of Philosophy, University of Illinois

-- Emily Bremer, Assistant Professor of Law, University of Wyoming College of Law

-- Adam White, Director, Center for the Study of the Administrative State, George Mason     University, and Hoover Institution.

-- Brian McCall, Merrill Professor of Law and Associate Dean, University of Oklahoma College     of Law

-- Patrick Brennan, Professor of Law and Scarpa Chair, Villanova University Charles Widger     School of Law

Snead on the Alfie Evans case

Here is my friend and colleague, Carter Snead, on the Alfie Evans case:

This decision reflects a profound, indeed lethal intolerance of dependence and disability. But it is even worse than that. Just as in the Charlie Gard case, the courts here effectively terminated the rights of Alfie's parents, forbidding them to seek transfer to other facilities that wished to care for Alfie. Both Pope Francis and the Italian government pled for Alfie's life, going as far as to make him an honorary Italian citizen and offering air transport to a pediatric hospital in Rome. But the UK government refused.

It has been disheartening, for me, to read the comments of some Catholics who seem more concerned about either lecturing others that the Catholic position cannot be reduced to mere "vitalism" (who thinks that it can?) or about the possibility that some will invoke this case as a reason to hesitate about single-payer health-care regimes than about the "life that is unworthy of life" reasoning underlying the refusal to allow Evans's parents to treat him. 

Sometimes, it "really is this simple": Ponnuru on the Alfie Evans case

"It really is this simple: The British state has decided that it is the baby’s best interest to die, and it is trying to ensure that he dies expeditiously. It is overriding parental rights in the process."  More here. 

Those who remind us that the Church's teaching on human dignity, equality, and end-of-life medical care is nuanced and fact-sensitive are, of course, correct.  However, those who think this reminder obviates the awfulness of what's happening in the Evans case are mistaken.  A policy commitment to, say, the all-things-considered wisdom of a single-payer system is no excuse for defending what's happening.

Why a Legislative Chamber Should Not Have an Official Chaplain

Here. (Whether it ultimately turns out that Fr. Conroy's dismissal as House chaplain was for political/theological reasons or because of "pastoral care" shortcomings.)

Rotating prayers before legislative proceedings are a separate question (Town of Greece). We might or might not think those are an acceptable even-handed accommodation or acknowledgment of religion. But putting one person in this post, and then fighting over whether his/her performance or views are acceptable, is ridiculous.

Charlie Camosy on "Alfie Evans and Our Moral Crossroads"

A powerful piece, at First Things, from Prof. Charles Camosy on the very disturbing case in the U.K.   Here's a bit:

. . . Let us not mince words. As with Charlie Gard before him, Alfie Evans’s death is being aimed by the very people whose vocation it is to help and protect him. The difference in Alfie’s case is that, because he has continued to breathe, the pretense of “removal of burdensome treatment” is patently absurd. In a situation that was no doubt distressing to those who hoped he would die, Alfie’s continuing to breathe has clarified the true object of the act of removing his ventilator.

Of course, as with Charlie before him, we had more than enough evidence to make such a judgment, even before Alfie was extubated. The primary judge who refused to allow Alfie to travel to Italy was concerned with Alfie’s brain damage, not with the burden of treatment. Alfie’s disability is likely to be profound, and thus, according to the judge, it is in Alfie’s best interests to die. . . .

Pope Francis has admirably been on the side of both Charlie Gard and Alfie Evans. The broader Catholic hierarchy, the UK bishops, and the men around Francis, however, seem cold and complacent, deferring to a medical and legal establishment that refers to the application of Catholic moral theology to these cases as “ridiculous emotive nonsense.”

Perhaps those who are not infected with the ableism of the developed secular West are in a better position to respond to such a charge. The Brazilian bishops, interestingly, have put out a video insisting that the UK government has a duty to use its resources to support those who most need it, and that Alfie’s life must be protected.

Indeed. Enough with the deference to the medical and legal establishment and its judgements about which lives are worth living. Now is a time for choosing. The most vulnerable require our clear and uncompromising support.

It must be underscored:  It is not just that resources are scarce and that, in this case, it seems they are not being allocated justly.  It's that the authorities are refusing to allow the child's parents to care for him someplace else, via means that will cost the U.K. nothing.  It is not an exaggeration to call this a kidnapping.

Charlie Camosy on "Alfie Evans and Our Moral Crossroads"

A powerful piece, at First Things, from Prof. Charles Camosy on the very disturbing case in the U.K.   Here's a bit:

. . . Let us not mince words. As with Charlie Gard before him, Alfie Evans’s death is being aimed by the very people whose vocation it is to help and protect him. The difference in Alfie’s case is that, because he has continued to breathe, the pretense of “removal of burdensome treatment” is patently absurd. In a situation that was no doubt distressing to those who hoped he would die, Alfie’s continuing to breathe has clarified the true object of the act of removing his ventilator.

Of course, as with Charlie before him, we had more than enough evidence to make such a judgment, even before Alfie was extubated. The primary judge who refused to allow Alfie to travel to Italy was concerned with Alfie’s brain damage, not with the burden of treatment. Alfie’s disability is likely to be profound, and thus, according to the judge, it is in Alfie’s best interests to die. . . .

Pope Francis has admirably been on the side of both Charlie Gard and Alfie Evans. The broader Catholic hierarchy, the UK bishops, and the men around Francis, however, seem cold and complacent, deferring to a medical and legal establishment that refers to the application of Catholic moral theology to these cases as “ridiculous emotive nonsense.”

Perhaps those who are not infected with the ableism of the developed secular West are in a better position to respond to such a charge. The Brazilian bishops, interestingly, have put out a video insisting that the UK government has a duty to use its resources to support those who most need it, and that Alfie’s life must be protected.

Indeed. Enough with the deference to the medical and legal establishment and its judgements about which lives are worth living. Now is a time for choosing. The most vulnerable require our clear and uncompromising support.

It must be underscored:  It is not just that resources are scarce and that, in this case, it seems they are not being allocated justly.  It's that the authorities are refusing to allow the child's parents to care for him someplace else, via means that will cost the U.K. nothing.  It is not an exaggeration to call this a kidnapping.

Will this Term see the unmistakable end of Chief Justice Roberts's decade-plus streak of outcome agreement with the U.S. Conference of Catholic Bishops?

This Term, we are likely to see the umistakable end of Chief Justice Roberts's decade-plus streak of outcome agreement with the U.S. Conference of Catholic Bishops in Supreme Court cases in which the USCCB has filed or joined an amicus brief and the Court has issued signed opinions. The outcome-agreement streak almost certainly ended two years ago in United States v. Texas, in which the USCCB joined an amicus curiae brief with several other religious organizations supporting reversal but the Supreme Court affirmed by an equally divided vote. The names of the Justices on each side of the four-four split were not published, but Chief Justice Roberts was almost certainly one of the four votes for respondent Texas.  (No reason to think Ginsburg, Breyer, Sotomayor, or Kagan voted for Texas.) 

In a law review symposium article a few years ago, I examined the votes of Supreme Court Justices for outcome agreement in cases from the beginning of the Rehnquist Court in October Term 1986 through October Term 2013 in which the United States Conference of Catholic Bishops had filed an amicus brief.

From the beginning of the Roberts Court in OT 2005 until the end of that study (June 2014), Chief Justice Roberts was the only Justice with a perfect record of outcome agreement with the USCCB (eleven cases out of eleven). In those same eleven cases, Justices Scalia and Thomas were at ten of eleven. Some of those cases pre-dated Justice Alito's time on the bench, but he was six out of seven in USCCB cases. (The table and parts of the discussion in the article if you click through to it are outdated because of a lag time between acceptance and final publication in which I failed to update for Hobby Lobby and Holt v. Hobbs; my bad.)

The difference-maker was Arizona v. United States. Chief Justice Roberts joined a six-Justice majority holding three provisions of an Arizona law dealing with immigration enforcement to be preempted by federal law. The USSCB filed an amicus brief in support of respondent United States. Roberts sided with the respondent while Scalia, Thomas, and Alito sided with petitioner Arizona. 

By my count, the USCCB has filed or joined an amicus curiae brief in nine more cases since the end of OT 2013:

Obergefell v. Hodges (OT 2014)
Whole Women's Health v. Hellerstedt (OT 2015)
Zubik v. Burwell (OT 2015)
Trinity Lutheran Church of Columbia v. Pauley (OT 2015)
United States v. Texas (OT 2015)
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (OT 2017)
National Institute of Family and Life Advocates v. Becerra (OT 2017)
Janus v. American Federation of State, County, and Municipal Employees (OT 2017)
Trump v. Hawaii (OT 2017)

As previously noted, the Court affirmed by an equally divided vote in one of those cases (United States v. Texas). Four remain pending for decision this Term. In the other four, though, Chief Justice Roberts voted for the outcome favoring the same side that the USCCB argued in favor of. (Those cases were Obergefell, Whole Women's Health, Zubik, and Trinity Lutheran.)

The most likely candidate for a case in which Chief Justice Roberts votes against the party supported by the USCCB as amicus is Janus v. American Federation of State, County, and Municipal Employees. The USCCB's brief supports the respondent public-sector union, while Chief Justice Roberts is likely to vote in favor of the petitioner. This is a First Amendment challenge to "agency fees" for public-sector unions. Chief Justice Roberts has signaled willingness to support such a challenge (by joining an opinion suggesting as much in Harris v. Quinn and likely voting for the petitioner in Friedrichs v. California Teacher Association, a 4-4 split).

Another possibility is Trump v. Hawaii, which is being argued tomorrow, but for which I don't have a good predictive sense of how the Chief Justice is likely to vote. 

Book Review Roundtable on Kathleen Brady's "The Distinctiveness of Religion"

Last Spring, the Program on Church, State & Society at Notre Dame Law School (more here) hosted a small roundtable conference dedicated to Kathleen Brady's then-new book, The Distinctiveness of Religion in American Law:  Rethinking Religion Clause Jurisprudence.  Each participant (including MOJers Michael Moreland, Michael Perry, Marc DeGirolami, and Tom Berg, and several others) wrote a short reflection on the book -- a kind of "admission ticket" -- and these reflections formed the basis for the day's conversations.  I'm pleased to report that the "tickets" have been collected in the November 2017 issue of the Journal of Law and Religion.  They are, if I say so myself, really good.  Take a look!

Bainbridge's "Thoughts on the Passing of a Friend and Colleague"

Last week, Professor Stephen Bainbridge wrote a post reflecting on mortality and reconciliation, "Thoughts on the Passing of a Friend and Colleague." Do yourself a favor; read and reflect: 

[A]s a Catholic, a passing is a wake up call. First, to honor and remember the friend by praying for the repose of their soul. Second, to evaluate my own inner spiritual life and then seek Reconciliation. Third, to commit some act of charity in remembrance of the friend. Fourth, to bear up the living in love and prayer. To reach out to those we have wronged or who have wronged us and be reconciled. 

"Chinese Catholics warned by provincial officials not to take children to Mass"

Story here.  A "religious freedom" that does not include the freedom to take one's children to Mass, and form them in the faith, and prepare them for the sacraments, is not (in any meaningful sense) "religious freedom."  I realize that it is not possible for western democracies and business-enterprises to disentangle from engagement and even cooperation with China, but I do wish there were reasons for thinking that this engagement and cooperation were animated and shaped by just a bit more attention to, and a bit less naivete and head-in-sanding about, this (the word is not too strong) tyrannical aspect of the PRC regime.