Mirror of Justice

Trump and Religious Freedom: Short-Term and Long-Term

Late last week in a rally, President Trump dissed George HW Bush's "thousand points of light" phrase, which Bush used in the 1988 campaign as an image for volunteerism for the common good in a civil society:

"What the hell was that, by the way, thousand points of light? What did that mean? Does anyone know," said Trump. "I know one thing: Make America Great Again, we understand. Putting America first, we understand. Thousand points of light, I never quite got that one."

Commentators focused on how Trump's riff was mean to HW. But it and other riffs like it are harmful to religious freedom. Granted, Trump's Supreme Court picks are more likely than those of other presidents (e.g. HRC) to take religious freedom seriously across the range of applications; that's a major reason, it seems, why evangelical Christians supported him. (All of the short-listers for the new seat give strong indicia of supporting religious freedom. And I say this even though I strongly believe the Court dropped the ball on the travel ban--because my guess is these nominees will be pretty strong on Muslim freedom outside the immigration context.) 

But however significant the short, even medium, -term benefit to religious freedom from a Court appointment, one must also reckon with the long-term harm to religious freedom that Trump has done by encouraging the undercutting of many of the reasons a society would care about protecting religious freedom. Last week's riff dissed the very concept of serving the common good through a plurality of institutions in a diverse civil society. Trump is beckoning conservative Christians, especially evangelicals--who seem to be quite willing to follow his pied piping--to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others. That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.

This point is an application not only of multiple Mike Gerson columns, but also of Marc and Kevin's fine Times op-ed of last week. The culture will matter in more pervasive, long-lasting ways than the new justice(s). And evangelicals are risking collaborating with Trump in irreversibly degrading their own culture.

How to lose credibility by making a fair point in an unfair way, Michael Sean Winters on Amy Coney Barrett edition

Michael Sean Winters recently made a fair point in a snide and sloppy way. The end result was to illustrate a different point entirely.

The fair point-- better put here by Rick Garnett last fall--is that "it is not inappropriate for senators to question judicial nominees ... about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role."

The point Winters actually illustrated, though, is that he cannot be trusted to fairly represent contemporary Catholic legal thought about American constitutional law.

Winters's post is a gallimaufry of ill-informed opinion about legal matters, en passant slimes of people and groups, and intramural Catholic posturing. It does not proceed analytically, but moves on to another point before it finishes developing the argument for a particular assertion. And sometimes there is no argument to be found. In what follows, I address two of Winters's main points as I can best reconstruct them and then explain why the framework he uses is unfortunate.

My two main points in response to Winters are (1) that Barrett's religious affiliation does not put the burden on her to counter a presumption that she lacks independence, and (2) that Winters does not understand originalism and textualism very well. As to the framework, it is regrettable that Winters uses Barrett's potential nomination principally as a vehicle for Catholic intellectual infighting.

 

1. Membership in People of Praise is not prima facie evidence of a lack of sufficient judicial independence. 

In discussing how others have covered Barrett's membership in People of Praise, Winters writes that "it would be irresponsible not to ask questions about the independence we want in a judge, independence that membership in this group would seem to preclude." Take a look at that last clause. A fair reading is that Winters believes "membership in [People of Praise] would seem to preclude" Barrett's possession of "the independence we want in a judge."

This charge is very serious. Yet Winters offers precious little argument or evidence in support. It would be helpful to know if he actually believes it.

Winters offers no reason to think that People of Praise's distinctive beliefs and practices include distinctive beliefs about how Catholic faith informs one's performance of the judicial role. Indeed, Barrett's co-authored article on this issue written twenty years ago is a model of engagement with the Catholic intellectual tradition on this topic. (Incidentally, that article is about cooperation with evil in the death penalty context, not what Winters dismissively describes elsewhere in his post as "issues of pelvic theology.")

The most charitable reading may be that Winters was just being careless here. Perhaps he was making the narrower point that it's reasonable to inquire into the beliefs and practices of a religious group to which a nominee belongs.

A clue that this may be so comes in his first-person declaration: "I am not sure how similar Barrett's life is to 'millions upon millions' of her fellow Catholics: Some of what I know about the 'People of Praise' gives me the willies." This reminded me of Senator Feinstein's "very uncomfortable feeling" about Barrett (and Winters's scare quotes are a nice touch). Feinstein knows many Catholics, like her colleagues Richard Durbin and Tim Kaine, and she seems totally comfortable with them. Barrett, though, seemed different.

Nobody should have a problem with asking a nominee questions about her understanding of the relationship between her religious beliefs and practices and her judicial role. But it's much more of a problem--deplorable, one might say--for Winters to justify those questions by reference to his (or anyone else's) "willies." 

 

2. Originalism and textualism are not "a kind of textual idolatry akin to Martin Luther's sola scriptura approach to the Christian faith, [or] a fundamentalist hermeneutic akin to the Rev. Jerry Falwell's understanding of how to interpret the Bible."

Winters is woefully underinformed about originalism and textualism. The principal merit of his hyperlinked source for defining originalism--a poorly sourced aggregation of content I've never heard of before--is that it may have shown up high in search engine results. I cannot get back into that source without registering, but I can at least report that Wikipedia's entry on originalism is much better.

Wikipedia, too, has its limits, of course. And there are deep theoretical debates about originalism, including arguments about just how representative of originalism Justice Scalia's constitutional law corpus may be. But Winters's assertion that "Scalia's theory has not even a passing similarity with our Catholic intellectual traditions" is easily falsifiable. For readings on the relationship between the Catholic intellectual tradition and originalism, I recommend Lee Strang, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, and my co-authored piece with Jeff Pojanowski, Enduring Originalism. Even better for those on a tighter time budget is Pojanowski's 7-pager, Why Should Anyone Be An Originalist? (Short answer: Because it's a practically reasonable way of achieving the kind of benefits that the positive law of a written Constitution offers.)

Strang, Pojanowski, and I are admittedly just a few legal scholars trotting out teleological reasoning in theoretical arguments about originalism's jurisprudential foundations. But as far as I'm aware, nobody has taken issue with the claim Pojanowski and I have made that "[f]ar from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law’s moral purpose animated the framers’ understanding of our Constitution." The dispute, instead, is instead largely about whether that tradition "provides the most persuasive reason for continued adherence to that original law today."

And contrary to the impression conveyed by Winters (in which Scalia seized on originalism to combat "Blackmun's [sic] penumbras"), neither originalism nor textualism has a necessarily conservative or Catholic inflection. If any particular camp is ascendant in originalist legal theory today, it is probably the libertarians'.    

There's much more I could say on these points. But better to save serious analysis for someone who first makes a serious effort to understand what he's trying to take on.

 

3. Winters's beef is much more with "the conservative Catholic legal establishment" than with Barrett herself.

When I studied for my Theology M.A. at Notre Dame two decades ago, most of my classes were in the Theology Department. But I also participated some in the intellectual life of the law school and took John Finnis's class on Aquinas there.

It was hard back then not to miss two big divides.

One was in the theology department itself, with respect to American Catholicism. Roughly speaking, this was a divide typified by Michael Baxter on the one hand and Richard McBrien on the other.

A second divide was between moral theologians in the theology department and people involved with the legal aspects of some of these issues in the law school.  The divide was not neat, for I learned a lot about the intersection of morality and politics not only from Finnis but also, and more so with respect to American constitutional law specifically, from Cathy Kaveny (now at BC). 

I mention these biographical notes because they shape the personal perspective I bring to Winters's post, which includes an awareness of the various fissures and tensions among Catholic intellectuals addressing the role of Catholics in American public life. 

When understood as the latest volley in an ongoing intra-Catholic skirmish, one can understand why such skirmishing is so regrettable. Barrett is made to bear the brunt of attacks that ought to be aimed elsewhere.

And some of it is downright offensive. Consider, for instance, Winters's discussion of how Barrett "is  a product of, and has been groomed by, the conservative Catholic legal establishment." Sure. When she hit it out of the park academically as a law student at Notre Dame, that was just her being groomed. Her impressive scholarship? Grooming also. 

"Having been groomed" by the "conservative Catholic legal establishment," Winters writes, Barrett is "now the face of that establishment." It's too bad that's the way Winters sees it and wants others to see it.

Too bad is how I see it, anyway. And I bet I'm not far removed in this regard from the Catholic outlook that informs Persons and Masks of the Law.

Shouldn't we try instead to see Amy Coney Barrett's as the face of a real person with a history, intellect, and will of her own?

The Talking Cure (once again)

In light of its pertinence again--it's an issue that never seems to go out of style--and what I believe to be a prototypically "Response One" form of engagement in the column Rick links to below, I'm reposting this from seven years ago (I'm old now) on the unavoidable shallowness of inquiries about religion for political ends.

***

Jacques Lacan’s famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject’s hangups and mental infirmities, came to my mind during the recent exchange between Rick Garnett, Paul Horwitz, Rob Vischer, and others (see here) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions.  Yesterday, as my colleague Mark notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.

But I had a thought that may strike some as perhaps a little heterodox.  I want to make a point in (partial, limited) defense of the Rortian “religion as conversation-stopper” view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago). When candidate X claims that she is informed in her thinking about political issue Y by her religious beliefs and traditions, this is sometimes (not always, but often enough) not the sort of claim that can be understood thoroughly by the public through thorough public discussion, stimulated by extensive question and answer sessions devised by journalists otherwise hostile to the candidate’s political position. What is more likely to happen is that religion — whether the candidate’s or not — will be used as a kind of instrument through which the journalist’s political orientation can be reaffirmed and re-cemented.

Two points are often heard against this view, which I’ll call Response One and Response Two. Response One is that this is the candidate’s own fault. She, after all, is using religion for political advancement of one kind or another. Why is it not then fair to use religion to knock her down — to erase the political advantage that she has gained, and to strike political blows against her to boot?  The candidate did not have to mention religion; but now that she has, religion is “fair game.” Response Two is that engaging with the candidate’s religious views takes religion and the candidate herself seriously — it engages in discursive good faith with the candidate.  We do not say to the candidate, “You have improperly introduced a forbidden subject into the political exchange.”  We say instead, ‘We want to understand you, and since your religious tradition seems to be important enough to you that you raise it to explain, or ground, or at least situate your position, we would like to probe your religious views by the medium of public discourse. We’d like to understand your view, which you’ve informed us is religiously grounded, by talking through it to see if we find it persuasive. Talking will help.”

I want to examine the responses in turn. Response One is motivated by an adversarially political aim, and it seems to me that it is a true reflection of the way in which political discourse is conducted.  That is because political discourse is, fundamentally (though of course not universally), shallow.

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A Strange Defense of Sen. Feinstein et al.

Michael Sean Winters has re-upped his (partial) defense of the line of questioning to which (my friend and colleague) now-Judge Amy Barrett was subjected by several under-informed members of the Judiciary Committee last year.  Barrett is, of course, an intelligent and accomplished lawyer, scholar, and teacher but Winters apparently now sees her (for reasons that are not provided) as the "face" of the "conservative Catholic legal establishment", an "establishment" that is "responsible" for the "deformation of the Church's public witness."

I'll pass over Winters's criticisms of Justice Scalia and what he takes to be "originalism" and leave it to others, such as our own Kevin Walsh, to provide a clarifying response (or perhaps just a reading list!).  For now, just two things:  First, Winters is, I believe, attacking a straw man when he suggests that those of us who were critical of Sen. Feinstein etc. objected to questions either about the law-review article she co-authored (about the obligations of Catholic judges in capital cases) or about her commitment, more generally, to decide cases in accord with the relevant law (rather than religious commitments, or anything else).  As I (and others) have said before, such questions -- so long as they are not ignorant, so long as they are offered in good faith, and so long as they do not presume that Catholics are less able than anyone else to perform the judicial duty -- are fine.  But, again, these are not the questions that were asked.  The President of the University of Notre Dame, Fr. John Jenkins, had a better interpretation and evaluation of the business than the one Winters provides.

Next, Winters accuses me of an "intellectual sleight of hand" for writing this:  "The senators would not have asked — and the senators' defenders would not have tolerated — repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they)." Winters says:

The blog Mirror of Justice says it is dedicated to "the development of Catholic legal theory." Even if there were a Muslim or Sikh equivalent, there are not five Muslims on the Supreme Court and there are no Sikh-sponsored universities with laws schools as we Catholics proudly boast, so the comparison does not ring true.

I do not see the "sleight of hand" here and am not sure what relevance the fact that MOJ is dedicated to "the development of Catholic legal theory" has to the charge.  Nor is it clear why the fact that there were five Catholics, and no Muslims, on the Court somehow undermines the point that "repetitive and badgering questions" of the kind asked by Sen. Feinstein et al. are inappropriate - whether directed at Catholics, Muslims, Sikhs, or anyone else.

Justice Kennedy’s Best First Amendment Opinion?

Before the chaos surrounding the confirmation of his successor gets underway next week, a look back at the legacy of Justice Anthony Kennedy. Safe to say he will most be remembered for the series of cases involving LGBT rights from Romer v. Evans in 1996 through Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges in 2015. He was in the middle of the Court on abortion, upholding the core of Roe v. Wade in the plurality opinion in Planned Parenthood v. Casey in 1992 while writing an opinion upholding restrictions on abortion in Gonzales v. Carhart in 2007. And he wrote important decisions on federalism questions, notably Boerne v. Flores involving Congress’s power to enforce Section 5 of the Fourteenth Amendment and Alden v. Maine regarding state sovereign immunity.

He also had an outsized influence in First Amendment law, both as to freedom of speech and the Religion Clauses: e.g., Citizens United v. FEC, Town of Greece v. Galloway, Lukumi Babalu Aye v. Hialeah, Sorrell v. IMS Health, and, most recently, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But what was Justice Kennedy’s best First Amendment opinion (“best” here just meaning my own subjective judgment blending together lasting doctrinal importance with soundness of result and analysis)?

My candidate: Rosenberger v. Rector & Visitors of the University of Virginia (1995). Recall that Rosenberger was about whether UVA could deny student activity funding (specifically payment for printing costs) to a Christian student publication as part of a policy that denied such funding to “religious activities.” UVA defended the policy on the grounds that there was no content or viewpoint-based restriction on speech in the policy and that the policy was required by the Establishment Clause (the case was argued by two academic luminaries--Michael McConnell for Rosenberger and John Jeffries for UVA). Writing for a 5-4 majority, Justice Kennedy held that the denial of funding was an unconstitutional violation of free speech that complying with the Establishment Clause did not excuse.

I won’t try to summarize all of the twists and turns in Rosenberger, but here are briefly what seem to me the two most important and lasting aspects of Justice Kennedy’s opinion:

1. Rosenberger placed an equality norm at the center of cases about religious speech and government funding of religious activities. Justice Kennedy’s opinion in Rosenberger doubled down on the Court’s equal access cases such as Lamb’s Chapel and refused to allow religion as a category to be treated distinctly or suspiciously when the state regulates expression or provides public benefits (seen most recently in Trinity Lutheran v. Comer). This comes about in Rosenberger through two moves in free speech doctrine: deeming the provision of funding by UVA a public forum (though more in a “metaphysical than in a spatial or geographic sense”) and holding that the exclusion of religious perspectives is unconstitutional viewpoint discrimination. And even though some cases (notably Locke v. Davey and CLS v. Martinez) might be hard to square with what I’m calling Rosenberger’s religious equality norm, Rosenberger still put that concern on a new footing.

2. Rosenberger marked an important departure from the Establishment Clause separationism of the 1970s and 80s in cases such as Lemon, Nyquist, and Aguilar. Of course, the issue in Rosenberger was in a sense the converse of the usual Establishment Clause funding case, i.e., not “may the government fund religious activities?” but “must the government not fund religious activities?” Justice Kennedy’s opinion states that so long as a program is neutral toward religion, the Establishment Clause does not require (let alone excuse) viewpoint-based restrictions on religious speech: “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” And so while the Establishment Clause discussion in Rosenberger is subsidiary to the free speech claim, it also foretold the Court’s move away from strict separationism in later cases such as Agostini v. Felton in 1997 and Zelman v. Simmons-Harris in 2002 (which characterized Rosenberger as “involv[ing] an individual and insubstantial use of neutrally available public funds for a religious purpose”).

May Justice Kennedy enjoy many happy years in retirement—and with our gratitude for Rosenberger v. UVA.

Judge Amy Coney Barrett

Here's a short reflection I wrote regarding my friend and colleague, Judge Amy Coney Barrett, who is (apparently) being considered to replace Justice Anthony Kennedy.  The bottom line (as I see it):

Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.

Roe will probably be reversed even further than before; the real combat is over Casey.

Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.

As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.

Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.

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Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.

Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version." 

The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.

The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.

The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.

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The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.

It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.

This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.

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Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.

The Blanshardians in our midst

Current events in our nation's capital make this Independence Day an especially opportune occasion to observe that Blanshardism is not finished.  By Blandshardism I mean, of course, the activities of those who believe what wrote in his best-selling book, American Freedom and Catholic Power nearly seventy years ago: "the Catholic problem is still with us." Albert Einstein, Bertrand Russell, and McGeorge Bundy were among the books most famous fans.  Following their master's lead, contemporary Blanshardians echo his call for a "resistance movement" to Catholics' "antidemocratic social policies."  A catalogue of Blanshardian grievances against Catholics and their Church is at hand in an article (here) I wrote several years ago. The article closes with Blandshard's agreeing with Hilaire Belloc that holding and adhering to the Catholic view of things about how this world is to be arranged and governed ensures "monstrous conflict" with those who prefer a state that is the agent of "the new morality" (a term I borrow from Edward Rubin). 

Of special salience in light of the aforementioned current events is the Blanshardian dogma that "overpopulation" encouraged by Catholic doctrine regarding human sexuality presents "the most basic and formidable threat to the future happiness of the human race."  It would be a grave mistake to underestimate the force driving this anti-human program.  Blandshard himself didn't shrink from aping the "three generations of imbeciles are enough" O.W. Holmes of Buck v. Bell in defending it: "Fortunately, neither the people nor the courts of the United States agree that there is anything necessarily wrong in depriving an insane or feebleminded person of the capacity to reproduce by a simple and relatively painless operation which does not even deprive him of the satisfaction of sex."  Here one does well to recall that Holmes's opinion in Buck, from which the Catholic Pierce Butler alone dissented, was joined by Stone, Brandeis, Taft, Sutherland, Van Devanter, Stone, and, of course, McReynolds. 

I am of the mainstream view that Buck v. Bell was wrong, but I am also of the view that Pierce v. Society of Sisters, a so-called "substantive due process" decision from which even Holmes did not dissent, and a decision contemporary neo-conservatives have a hard time justifying in terms of their judicial philosophy of choice, was and remains right.  Be that as it may, our Supreme Court's power and authority to set aside acts of the legislature on the ground that they are substantively deficient are not going away, and for that sufficient reason it makes good sense for the Senators to inquire into the substantive views of judicial nominees.  When the Senators do make those inquiries and make them openly, We the People can assess whether their own criteria for evaluating those views are Blanshardian, as they often are and will be, and then decide for ourselves if we will keep voting Blandsharians into high office.  Blanshardians usually beget Blanshardians.      

A Pro-Life Ripple in a Sea of Pro-Choice Academic Commentary

With the retirement of Justice Kennedy from the Supreme Court, law professors have been speculating how constitutional law may change with a new member of the Court. At the forefront of concern for many is the continued viability of Roe v. Wade, the decision that announced a nearly-absolute right to abortion of a pregnancy.

Given the ideological and political homogeneity of law professors generally and of constitutional law professors in particular, online discussions not surprisingly have been dominated by those who bemoan this possibility. Professorial posts typically frame the question in stark terms between, on the one hand, support for women's rights and gender equality, and on the other side, disrespect for women or even the design to undermine the progress of women toward professional and cultural equality. Indeed, on a general “listserv” of constitutional law professors, posts tend to assume that everyone is on the same page, to the point of outlining the strategy for preserving abortion rights by legal and political action and cheering the various advocates and organizations that champion “reproductive rights.” That anyone in the legal academy might disagree or that another value – such as protection of unborn life – might play a role in the debate appears not to have occurred to many or at least is seldom acknowledged.

While I have become mostly a reader and not poster on internet discussions in recent years, I was unable to resist this time, given the blessings of life that have washed over me recently, as explained below. And so into the "conlaw" professors’ discussion, I interjected this message last week:

Friends, just as a reminder, lest this become a pro-choice echo chamber as we see too often on abortion in the legal academy, tens of millions of Americans regard protecting the life of the unborn to be the most important civil rights movement of our time.  One could as readily list many local pro-life organizations, simultaneously compassionate and passionate, who are dedicated to helping pregnant women avoid the Faustian bargain of abortion.  I have had the opportunity to observe and provide support to families involved with these organizations, who have sacrificed greatly to bring into their homes new-borns of all races, backgrounds, and disability status.

More than half-a-century ago, my 15-year-old birth mother placed me for adoption after she had broken up with her high school classmate who was my birth father.  That loving choice was the spark of multiple blessings to my adoptive family, including my parents who could not have children of their own and obviously to me in the opportunities I have had.  Within just the past two weeks, I’ve learned the identity of my birth mother (from her participation in one of the DNA companies).  That in turn has opened doors for me now to learn of five more sisters and two more brothers, as well as more than a dozen nieces and nephews.  In the past two weeks, the joyful exchanges by phone, on email, and through Facebook have been overwhelming, moving me to tears nearly daily.  I know I will be blessed by building relationships now with my larger family, unknown to me for nearly all my life.

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NY Times Op Ed with Walsh on the Court, the Culture, and the Justice to Come

Kevin Walsh and I have an op ed today in the New York Times about the Supreme Court, the culture, and what to hope for from whoever replaces Justice Anthony Kennedy. A bit:

 [W]ith Justice Anthony Kennedy’s retirement last week, many of our fellow conservatives are suddenly buoyant. They believe everything is about to change. It is a perennial temptation. If only one or two justices had been different — a Robert Bork rather than an Anthony Kennedy, an “anybody else” rather than a David Souter — then, it is imagined, we would inhabit a different constitutional universe. The problem is simply a matter of personnel. Now at last we will get our chance to fix the country, they think.

Let us not get our hopes too high. Even if Justice Kennedy is replaced with an actual conservative, as we hope and expect, the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least. Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.

Why? Because law, like politics, generally conforms to the culture. The Supreme Court is shaped by the culture that surrounds it; its instinct is to follow, not to lead. Consider the sexual autonomy cases of the 1960s and ’70s, or the cases involving civic displays of religion in the 1980s and ’90s, or the gay rights cases of this century. In each instance, the court channeled the views of a preferred emerging cultural constituency — about the sexual revolution, about secularization, about same-sex relationships — in recognizing the corresponding rights. The Psalmist was right to warn against trust in princes…

To be sure, law is important. It forms the culture around us, just as much as it is informed by it. Indeed, the Supreme Court has made itself a powerful symbol of an American yearning to resolve profound cultural conflict once and for all. It has come to exercise a potent didactic function over the past several decades. It instructs us, scolds us and exhorts us to follow it. It has become a relentless smasher and refashioner of rights.

As some feverishly speculate about which 5-to-4 decisions of the recent past will soon vanish, we counsel patience. Conservatives have rightly criticized the judicial manufacture of rights; let us not make the mirror-image mistake of urging immediate doctrinal demolition. The legal landscape may change for the better through erosion and accretion, rather than avulsion and ill-considered construction.

Chief Justice John Marshall once wrote that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” But today, new constitutional law is born and killed off in waves in response to the felt imperatives of cultural change. This is the Supreme Court we have now, borne of the culture we have now. No bright, shiny, new justice can change it alone.