Mirror of Justice

Traditionalist Originalism

Here is the latest over at the Liberty Fund in my small efforts to play with what a fusionist interpretive approach to constitutional interpretation--integrating originalism and what I have called traditionalism--might look like and require. The occasion is a reply to some fine essays by Professors Randy Barnett, Jesse Merriam, and Ilan Wurman, who were responding to this piece on stare decisis.

I find these more extended exchanges useful. You get a chance to really talk to people a bit more, so to speak. Here's a little bit:

Originalists moved by Professor Barnett’s imperative [to align doctrine with original meaning] would be well-advised to attend to the difference between, on the one hand, an ancient and enduring cluster of precedents reflecting practices extending back to the founding (and even before it) and, on the other, a comparatively recent, one-off, “unmoored” (as Justice Thomas put it) decision that runs counter to such enduring practices. This distinction is important for at least two reasons, one theoretical and the other practical.

First, at least in cases where meaning is uncertain, old and enduring precedential lines carry greater epistemic weight about those meanings than do recent and isolated doctrinal innovations. Precedents proximate in time to the founding and repeatedly entrenched thereafter for centuries in subsequent doctrine and practice are more powerful evidence of permissible, even if not mandated, textual meanings, than precedents that do not share these qualities. True, they are not conclusive evidence. An ancient and enduring line of doctrine may have gotten it wrong, and wrong repeatedly, from the start. But for the many constitutional provisions where meaning is uncertain, and for situations in which there may be several interpretations that are not “demonstrably erroneous,” originalists concerned about epistemic warrant ought to grant such precedential lines a presumption of veracity.

Consider the bizarre and hubristic alternative: a world where early judicial interpretations, and the lasting and concentrated lines of precedent generated by them, are given no respect at all, or are even presumed to be wrong, and it is only the latest-arriving “knowledgeable scholars,” so much more distant in time and legal culture, who can see clearly and are owed epistemic deference. Judges evaluating practices close in time to the founding have access and insight that scholars who research original meaning today should acknowledge and respect. They are much more likely than we are to share in the political and cultural ethos of their own time. And where an early understanding has endured and been repeatedly reaffirmed for generations, thereby increasing its law-like properties, the respect we owe it likewise should increase.

Second, the justices whom originalists admire most do tend to invest ancient and enduring precedential lines with qualitatively different stare decisis force than recent, novel, and unmoored precedents. As I indicated in my first essay, this is something that judges inclined toward originalism have appreciated better than their scholar counterparts. I was therefore puzzled by Professor Barnett’s claim that “some justices” today may be eager to overrule D.C. v. Heller and Citizens United v. FEC, just as other justices of the Warren and Burger Court eras swept away ancient and longstanding precedents that obstructed their progressive political aims. That may be true, but I would not have thought that originalists would take these justices to be their models, let alone to vindicate Professor Barnett’s argument that Supreme Court justices “must be free” to vote as they like whenever they like, stare decisis notwithstanding.

Against Professor Barnett’s claim that Supreme Court justices “never have” treated stare decisis as especially powerful in the case of old and enduring precedents, I point back to my initial essay, where I described the considerable “buy-in” that already exists from the justices whom originalists admire and would like to win over—including Justice Thomas, Justice Gorsuch, and Justice Alito in their respective opinions in Gamble, Mesa, and Ramos. If the Chief Justice can be shown the error of his “insidious” conception of stare decisis in June Medical, as Professor Wurman puts it, then perhaps he, too, might be persuaded to buy in.

In highlighting age, deep roots in common practice, and enduring continuity—that is, in emphasizing the jurisprudential traditionalism of constitutional law—these justices are telling originalist scholars something important about the virtue of stability in constitutional law, and about its nature. As Judge Amy Coney Barrett has indicated, Justice Scalia likewise long defended the “stare decisis” of American political and cultural traditions against the doctrinal innovations of judges (and scholars) entirely disconnected from, and sometimes even disdainful of, those traditions. “In an important sense,” Judge Barrett argues, “originalism can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” Justice Scalia is no longer on the Court, of course. But others may come who have been influenced by his legacy. Originalists have reasons to listen to what these judges are telling them.

Call for Nominations: Harold Berman Award for Excellence in Scholarship

MOJ readers: please nominate a law-and-religion paper, and/or tell others about nominating!

Tom

+++++

     The Association of American Law Schools (AALS) Section on Law & Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2019 and July 15, 2020. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible, and self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award.  

     Nominations should be sent to Thomas C. Berg (tcberg at stthomas dot edu), Chair of the Berman Prize Committee, by October 9, 2020. The winner will receive an award plaque and be recognized at the section’s program at the AALS annual meeting in January 2021. 

ACB: A New Feminist Icon - at Politico

I have a piece at Politico today in which I argue that Judge Barrett embodies a new kind of feminism, one that builds upon, while remaking, RBG-style feminism. Read it all here.

Happy to announce that I have a book-length version of the historical, philosophical, and legal argument for this new feminism (which I take to have some old roots), coming out in 2021 from Notre Dame University Press. 

Christianity Today: Why the Supreme Court Makeup Matters Beyond Abortion

Christianity Today has a collection of short essays by a host of legal experts -- including two of us on Mirror of Justice -- about why the Supreme Court's makeup has implications beyond the question of abortion.

Amy Coney Barrett and the "Dual Loyalty" Canard

That's the title of a piece I've written (here) for National Review Online rebutting some of the more egregious arguments in this piece by Massimo Faggioli. The introduction:

My Villanova University colleague Massimo Faggioli has an online contribution at Politico about Judge Amy Coney Barrett arguing that as “a Catholic scholar” he thinks it is fine “to ask questions about Barrett’s religious beliefs.” Along the way, he sets up and knocks down a series of strawman arguments, engages in pernicious dual-loyalty arguments that are a longstanding staple of anti-Catholic (and anti-Semitic) bigotry in American public life, and asserts gratuitously that “Amy Coney Barrett is not Catholic like John F. Kennedy was Catholic.”

What I Will Teach My Children About RBG - in America Magazine

As Justice Ginsburg's lies in repose at the Supreme Court this week, I've published some reflections on her legacy at America. Here's a bit: 

 

Well-intentioned interlocutors on both sides of the abortion debate often argue that women would not need to access abortion so frequently were our society more hospitable to children, our workplaces more accommodating, our government more generous in its support of families, our available housing and health care system more affordable. And it is true: These sorts of culture-wide changes would be transformative in the lives of women who find themselves unintentionally pregnant. As such, I support them, too.

 

But these arguments tend to neglect an essential reality about the pedagogical nature of law, well known to classical jurists and philosophers but widely forgotten today. The law shapes a culture, explicitly teaching it not only goods to be pursued and evils to avoid but even more subtly creating incentives and disincentives to action, channeling individuals to behave in certain ways. As Alexis de Tocqueville observed, American law “[works] in secret upon its unconscious patient, till in the end it has molded it to its desire.”

 

When abortion is constitutionally protected, easily accessible and, in some jurisdictions, free of charge, as it has been in our country for nearly 50 years, that reality shapes individual and institutional behavior. Sexual partners take more sexual risks, leading to more unintentional pregnancies, more nonmarital births and more abortion; employers think less about how to accommodate caregiving and discriminate against pregnant women instead; the health care and pharmaceutical industries fail to make an investment in really understanding women’s fertility, preferring pharmaceutical quick fixes; and, perhaps most perniciously, governments fund private abortion while still making little allowance for the public good of caregiving. [visit article for active links]

 

Finally, and most relevant for our reflections, relatively easy abortion access too often relieves men of the mutual responsibilities that accompany sex and so has tended to upend the duties of care for dependent children that fathers ought to share equally. More than a third of children in the United States live without their fathers, even as social science has begun to isolate the essential contributions these men make to their children’s development. For although the connection between sexual intercourse and potential motherhood remains an unshakable biological reality, the connection between sexual intercourse and potential fatherhood—the connection that irresponsible men have always sought to avoid—has withered even further since Roe....

 

Of course, legal and cultural pressures like these are overcome by individual men and women all the time. But a culture-wide orientation in this direction harms far too many people, most especially poor women and children. Single mothers, who are disproportionately more likely to live with their children in poverty than anyone else, are hardly experiencing anything approaching “gender equality.” Rather, men who are deeply engaged in their marriages and the rearing of their children open up for their children’s mothers a whole range of possibilities and privileges unknown to mothers raising children without such paternal support. Without the investment and engagement of her husband in their children’s lives, it is hard to imagine Ms. Ginsburg achieving all that she did. Indeed, I think she would be the first to acknowledge that.

 

Faggioli's misguided defense of attacks on Judge Barrett

Massimo Faggioli, of Villanova University, has a habit, and makes it a practice, of importing into Catholic matters, questions, discussions, etc., the standard (tired?) political/tribal categories and characterizations of "left", "right", "culture warrior", "progressive," etc.  Because, according to his map, the lay movement "People of Praise" is "conservative", it follows, apparently, that (like all political things "conservative") it is worrisome. 

This mapping is, I suspect, what explains his Politico piece defending the ongoing attacks on/criticisms of Judge Amy Barrett's affiliation with "People of Praise" and his repeated defenses of those senators who asked clumsy (at best) and bigoted (worse) questions about Barrett's Catholicism during her confirmation several years ago.   (It should be noted, and regretted, that Politico -- an often valuable outlet -- has been trafficking recently in the completely silly insinuations about some imagined connection between Margaret Atwood's "Handmaid's Tale" and the (utterly innocuous) use, in the past, by "People of Praise" of the scripturally inspired term "handmaid" (See Luke 1:38).

In any event, the piece is misguided.  Now, it is true (quoting the headline) that politicians' and nominees' "religious beliefs" are not "off limits" to voters and senators.  (If a candidate for office sincerely held a religious belief that some persons did not possess equal human dignity as other persons, that would be a good reason to vote against such a candidate.)  What should be off-limits are (a) misrepresenting or wilfully misunderstanding a nominee's or candidate's religious beliefs and (b) applying, without justification or warrant, greater suspicion and skepticism to a candidate's or nominee's sworn testimony because of disagreement with that candidate's or nominee's religous beliefs or affilitations.  Several Democratic senators did these things during Barrett's hearings on her Court of Appeals nomination, and too many commentators and activists are doing these things now. 

All political leaders, judges, candidates, and nominees have views, commitments, ideals, attachments, loyalties, etc.  We can (and do) ask them, "if you come to occupy a position of public trust and responsibility in our political community, will you exercise your responsibility, and fulfil your role, in a way that respects our political community's laws and norms?"  If they say, under oath, "yes"; it is wrong -- it is just bigotry -- to say, "well, because you are a 'conservative' Catholic, we don't believe you.  'The dogma lives loudly,' and all that."

It is also, by the way, highly misleading for Faggioli to enlist Pope Francis in support of his anti-"People of Praise" and anti-Barrett insinuations.  The Holy Father has praised charismatic renewal as a “current of grace” in the Catholic Church.  And, in 2014, he appointed one member of People of Praise as an auxiliary bishop in Portland, Oregon.

A few years ago, a suspiciously timed and oddly sourced piece appeared in the New York Times, which also tried to hamstring Barrett's nomination with various allegations, rumors, and insinuations about "People of Praise."  It's too bad that we are already seeing a reprise.

Law, Religion, and Coronavirus in the United States: A Six-Month Assessment

October 2, 2020 11:00 am ET

Moderators:
Brett G. Scharffs and Jane Wise, BYU Law School
John Bernau, Shlomo Pill, and Justin Latterell, Emory Law School
Stephanie Barclay, Notre Dame Law School
Mark Movsesian, St John’s University School of Law
Michael Moreland, Villanova University

Sponsored by:
International Center for Law and Religion Studies, Brigham Young University Law School
Center for the Study of Law and Religion, Emory University Law School
Notre Dame Program on Church, State & Society, Notre Dame Law School
Center for Law and Religion, St. Johns University School of Law
Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

https://www.iclrs.org/law-religion-and-coronavirus-in-the-united-states-a-six-month-assessment/

Man, Woman, Body, Soul in the Western Tradition Saturday Seminar

Happy to announce that Angela Franks and I will teach our intensive Abigail Adams summer seminar on (bi-monthly) Saturdays starting in early October. Here's a short video about the seminar and here's more info. Applications are being accepted until September 28th. 

The seminar is part of the new Wollstonecraft Project at AAI. The Wollstonecraft Project aims to guide, facilitate, and support scholarly engagement in questions of sexual equality and freedom, as philosophically informed by realist metaphysics, virtue-based ethics, and a Wollstonecraftian understanding of women’s rights. We will also be awarding a $20,000 fellowship for research and scholarship in this area. 

 

RBG's autonomy feminism and Judge Barrett

After President Trump nominated Brett Kavanaugh to fill Justice Kennedy's seat, CNN asked me to offer a few thoughts for their roundup, In Trump's Court Pick, Who Won? Not sure I answered the question, but my contribution -- "Amy Coney Barrett Would Have Been a Better Choice" -- seems particularly relevant this week.

I don't know Judge Barrett personally (as many MOJers do), but to me she represents a powerful rejoinder to the autonomy feminism that predominates the women's movement today. I do hope she is nominated this week -- and swiftly confirmed. 

Here's my short CNN contribution (omitting much of the paragraph on Kavanaugh): 

I have to admit it: I was hoping President Trump would choose Judge Amy Coney Barrett. Brilliant, courageous, and quick on her feet, the professionally and personally esteemed mother of seven puts to rest — in her very person — the central pro-choice feminist assumption that bearing and raising children impedes women’s serious engagement in professional and public life.

She would have brought true diversity to the Court on the most rancorous constitutional issue of our day, underscoring how an intellectually astute woman need not acquiesce in the unquestioning abortion rights dogma that has held the cause for women’s rights hostage for far too long now. And she would have been able to make the case the best way possible: debunking the sham legal reasoning that has upheld the putative right for decades by day and blazing an alternative path with her family by night.

Comparatively, President Trump played it safe: Judge Brett Kavanaugh... [well, in retrospect, that wasn't a very good take]

Should the President have another chance, and should that chance come in the form of the retirement of an aged Justice Ruth Bader Ginsburg, Trump should pull the trigger and nominate Coney Barrett. Our country desperately needs the opportunity to debate not only abortion, but to see how the autonomy feminism Ginsburg has long represented should pass away with its most cherished leader.

A dignitarian feminism, by contrast, would recognize both that women and men are of equal dignity and are duly encumbered by their shared responsibilities to the vulnerable and dependent — in their own families and in the community at large. Coney Barrett would not only serve the Constitution better than most jurists of our time; she would reveal, by the very integrity of her life, a more dignified way forward.