Mirror of Justice

1st Circuit Upholds Exclusion of "Sectarian" Schools

... In a panel opinion joined by David Souter (ret.), sitting by designation. Maine provides that rural students who can't access a public school can have tuition paid at a private school, but not if it's "sectarian." The CA1 permitted this, despite Trinity Lutheran Church and Espinoza, on the ground that the definition of "sectarian" means that a school (and the parents' choice of it) is disqualified from eligibility not simply because the school is religiously affiliated (religious "status"), but because the funds will be used for activity that includes religious teaching (religious "use").

That issue was formally reserved by Trinity Lutheran and Espinoza: the  Court wrote the opinions in a way that allowed a lower court to do this if  so inclined. But the status/use distinction won't, and shouldn't, hold up ultimately. For one thing, "use" for religious teaching is also religious exercise (as Justice Gorsuch has emphasized throughout). For another, denying the entire tuition benefit--which supports education of full secular value--because there's religious teaching mixed in ends up denying it based on religious character/status. The distinction collapses, as Gorsuch has also said. Doug Laycock and I have laid out these arguments fully in an Espinoza amicus brief and a new article just published in the Journal of Law and Religion.

 

It seems very likely that a majority of the Court would view the CA1 ruling as appropriate for reversal. The question is whether they want to revisit the issue so soon after Espinoza.

 

The CA1 opinion also has a striking argument that the state is paying for the equivalent of a public education and the essence of a public education includes there being no significant religious element--therefore only secular private schools should be eligible. Although the state places some baseline accreditation-type regulations on the qualifying private schools, it doesn't appear to place major regulations that ensure they're truly like the public schools. They just can't teach religion.

 

There is an argument out there, with very broad consequences, that even funding public schools only--and no private schools--discriminates against religion because part of the definition of a public school is that it can't have religion in its teaching. It's almost like the CA1 panel wants to drive the Court toward that argument.

Justice Barrett, judicial departmentalist

Although much has been made of Justice Barrett's originalism, it is more likely that her judicial departmentalism will matter much more. More specifically, I believe that Justice Barrett's Judicial departmentalism will be more important than her originalism in each case in which it matters, and that her judicial departmentalism will be operative in more cases than originalism will be. 

Judicial departmentalism is best understood by way of contrast with judicial supremacy. Conventionally, judicial supremacy is the position that the Constitution means for everybody what the Supreme Court says that it means in resolving a case or controversy. Judicial departmentalism, by contrast, is the position that the Constitution means in the judicial department what the Supreme Court says that it means in resolving a case or controversy. Instead of treating judicial departmentalism as an alternative to judicial supremacy, then, we could also treat it as a form of bounded judicial supremacy. The boundaries around Supreme Court authoritativeness are the boundaries around the judiciary.

There is an affinity between originalism and judicial departmentalism insofar as originalism provides an account of what the Constitution means that does not necessarily depend on looking to what the Supreme Court has said. Originalism can therefore provide a reference point for determining whether existing judicial doctrine underenforces or overenforces the Constitution in a variety of ways. As I have previously argued, "[c]onstitutional originalism provides a standard outside of the Supreme Court's doctrine but inside the law that enables one to see how legislation may appear to overenforce when measured against judicial doctrine, but actually does not, because the judicial doctrine underenforces the Fourteenth Amendment as assessed from an originalist perspective."

Justice Barrett's prior academic writings do not explicitly adopt judicial departmentalism. But the concept is relatively new and still somewhat obscure. I first presented the idea publicly at a symposium at William & Mary Law School that I then left early to attend Justice Scalia's funeral. But Justice Barrett's prior academic writings reveal an openness to judicial departmentalism. And Barrett joins the Court after having studied the history and limits of the federal judicial power in greater detail than any other current Justice had studied it prior to joining the Court. 

Barrett's scholarship recognizes limits on the authoritativeness of the Supreme Court's say-so in a variety of ways. For example, her scholarship supports skepticism that the Supreme Court possesses inherent supervisory rulemaking authority over other federal courts. And even more importantly, Barrett has explicitly distinguished originalism as a theory of law from originalism as a theory of adjudication. Because of this important and well-founded distinction, judicial implementations of originalism must always remain open to influence by some normative theory of adjudication in addition to a descriptive or prescriptive theory of law. And judicial departmentalism is a component of both a theory of law and a theory of adjudication. There is therefore very good reason to think that Justice Barrett will understand her role on the Supreme Court in self-consciously judicial departmentalist terms. This would provide a welcome contrast with the unselfconscious and often inconsistent judicial supremacy one more commonly encounters.

Justice Amy Coney Barrett

I share the joy of so many of my colleagues across MOJ-world upon the confirmation of Justice Amy Coney Barrett. As those of us who know her could attest and now the country has seen, Justice Barrett is a remarkable combination of intelligence, generosity of spirit, and judicial temperament. The nation is fortunate indeed to have such a person in high office.

I participated recently in a podcast (available here) about Justice Barrett's confirmation hearing hosted by the National Constitution Center with Kate Shaw from Cardozo and moderated by Jeff Rosen, the President of the NCC. I was also on a webinar (available here) about the Supreme Court hosted by the Union League of Philadelphia with Michael Gerhardt from UNC-Chapel Hill, who served as a special counsel to Senator Dianne Feinstein (D-CA) for the confirmation hearing.

One last note about the confirmation process over the past few weeks and civil discourse. Notwithstanding the efforts of some to attack Justice Barrett personally and reprise the confirmation hearing for her nomination to the Seventh Circuit, Senate Democrats focused their opposition to Justice Barrett on the forthcoming case about the Affordable Care Act—figuring (probably correctly) that a big culture war fight over Justice Barrett's faith might be catnip for the progressive left but politically detrimental for Democrats. And while opposition to Justice Barrett’s confirmation on the basis of the ACA case is legally fatuous, it at least had the marginal benefit of highlighting differences in judicial philosophy and the separation of powers between Congress and the courts.

Congratulations to Justice Amy Coney Barrett

I am delighted that my dear friend, neighbor, and colleague has been confirmed to the Supreme Court of the United States.  (Note to media-types:  It's not called "the United States Supreme Court.")  Here's the ND announcement.  (One hopes that more appropriate celebration and commemoration will be coming from the University soon.)  As I wrote here, a few years ago:

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.

I'm very pleased that neither our dysfunctional politics nor the strange obsessions of a few theologians were able to prevent this welcome development. Warm congratulations to the justice.  

Happy Pope St. John Paul II Day!

NCR's Uninformed and Misguided Attack on Judge Barrett

In this staff editorial, the National Catholic Reporter team advances the strange notion that Judge Barrett's nomination should be rejected because of her alleged "moral relativism."  (The charge is strange, in part, because it circulates with another set of wrongheaded attacks on Barrett, i.e., those that claim she will aggressively impose "her morality" on others and on legal questions.  Chesterton would enjoy this spectacle, I guess.)

To paraphrase the wise Inigo Montoya, that word does not mean what the NCR writers think it means.

Contrary to the editorial writers' charge, there is nothing "morally relativistic" about, e.g., declining to answer unlettered senators' bad-faith questions having to do with their various hobby-horses (Dark Money! The Shadow Docket!) or about political figures, policy questions, and matters that are, or are very likely to be, the subject of litigation. All nominees decline to answer such questions and -- although there is room for disagreement at the margins -- this declining is generally required by judicial-ethics canons. Barrett never suggested that the questions she was declining to answer do not have answers, or that the answers to them do not matter. She (quite appropriately, even if it interfered with the senators' made-for-TV antics) simply noted that it's not appropriate for a judicial nominee to answer them.

In addition, the NCR editorial echoes and proposes a common mistake, namely, that it is somehow "relativistic" for a federal judge to insist that federal judges are not authorized or selected to supply the law's moral content or to resolve moral disputes. (Justice Scalia was also often on the receiving end of this kind of thing.)  A judge with the judicial philosophy that Judge Barrett espouses does not think that "morality is relative", or that it doesn't matter if our laws reflect sound morality or not, or that it is not important that the correct answers be supplied to moral questions. Such a judge simply thinks, again, that politically accountable actors (this side of Heaven) are those best and most legitimately situated to make the trade-offs, compromises, and close-calls that human law-making necessarily involves and that the job of a judge is to try to figure out which calls the politically accountable actors actually made.

Now, the NCR piece is unsigned, but it is consonant, in themes and in tone, with some claims that NCR's Michael Sean Winters has been advancing for years -- about "originalism", constitutional interpretation, etc. -- and that are also, in my view, mistaken. Among other things, Winters seems to think that "originalists" adopt the interpretive methodology they do because of some imagined moral authority or superior character possessed by the "Founders" or by the Founding generation, many of whom, Winters will sometimes remind us, were anti-Catholic. Yes, many were. But, of course, the case for "originalism" has nothing to do with these actors' character and insight. It is much more prosaic:  In a democracy, the judicially enforceable content of positive law is fixed by the understanding of those who enacted the law. To depart from that understanding is to re-make law and, when federal judges do that, they are acting outside of what We the People authorized them to do authorization. 

Back to the NCR anti-Barrett editorial:  It states (among other things), "[i]n her commitment to originalism and textualism, she claims not to be interpreting the law or the Constitution at all." This is quite odd. The entire point of interpretive methods (other than the "do what you think is right for those litigants you find most sympathetic" method that the editorial writers appear to endorse) is that they are methods of interpretation. The aim of these methods is to identify the semantic and judicially enforceable content of positive law.

Judge Barrett should, and I hope will, be confirmed. I know her well, and admire her a great deal. It is disappointing that, regardless of its opposition to the nominating president or its frustration with the state of our judicial-nominations process, a Catholic periodical would push such implausible lines of attack.

UPDATE:  A longtime reader and MOJ-friend writes in, with this:  "It is ironic that the National Catholic Reporter would attack the notion that whatever else a text does, it has a meaning within the context that it is written, a meaning that can be discerned by careful historical scholarship, a meaning that is particularly important to discern in a text that bears upon how we conduct our lives today.  After all, the entire field of contemporary historical biblical studies is based upon that thesis."

Judge Amul Thapar to guest lecture at Notre Dame Law School

Notre Dame Law School's Program on Church, State & Society is pleased to welcome Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit as a guest lecturer the week of October 26.

Judge Thapar will teach alongside Program Faculty Director and Paul J. Schierl/Fort Howard Corporation Professor of Law Richard Garnett in a Freedom of Religion seminar course offered to a select number of Notre Dame Law students. Thapar will also meet in small groups throughout the week with first-year law students affiliated with the Program on Church, State & Society.

https://law.nd.edu/news-events/news/judge-amul-thapar-to-guest-lecture-at-notre-dame-law-school/

 

Ending the Train-Wreck Presidency (or Why I'm Voting for Biden)

In my professional life, I have not been reticent to express my opinions on matters of the law and legal reform, taking clear and I believe well-informed public positions on matter of public policy.  In my personal life, I have not been quiet in expressing my political views, including judgments about candidates.  (And in expressing political opinions here, I of course do so in my personal, academic, and professional capacity, not on behalf of my Mirror of Justice colleagues or speaking for the University of St. Thomas.). My colleagues, professional associates, family, and friends know where I stand on major issues:

• I believe in robust protection of religious liberty, including the right of individuals, religious schools, and churches, mosques, and synagogues to express religious views and exercise religious practices that may not be in vogue with the cultural elite.

• I believe that educational choice — including (especially including) religious schools — is one of the most powerful engines for progress, equal opportunity, and racial equity.

• I believe that the right to life of the unborn should be recognized as a compelling civil rights cause.

• I believe that people in urban areas, as well as suburban or rural, have a right to be safe from violence, whether safety is endangered by racist police subcultures and unnecessarily militaristic practices or by foolish calls to defund and abolish the police.

• I believe that law-abiding citizens have a constitutional right to own a gun for self-defense or sport and am a gun owner myself.

• I believe in freedom of speech and defend it against threats by self-righteous intolerant persons in the cultural elite of academia, media, and government or elsewhere in society.

• I believe that socialism is a dangerous ideology with a long history of destroying economic prosperity and undermining liberty throughout the world.

• And I believe that government and politicians are as often the problem as the solution, so that we often (not always, but often) are better advised to look for community-based partnerships for the common good.

I understand and respect that most people who share all or most of the beliefs that I have just articulated will find it difficult or impossible to support Joe Biden for president.  They instead find themselves, even with grave misgivings, forced to the conclusion that President Trump is the lesser evil in this election.  I love many people and know and appreciate others who, while acknowledging the grave flaws in this disordered man and saddened by the choice, will reluctantly cast a vote for Donald Trump.  And I know others who conclude the only alternative is not to vote for president or to cast a protest vote for a write-in or third-party candidate.

But I submit these conclusions are badly mistaken at this moment in history.  The greater good, the higher priority right now is to bring an end to this train-wreck presidency.

I do not think that religious liberty, free enterprise, educational opportunity, public safety, or the right to life of the unborn are at all safe in the insecure hands of this president.  Indeed, I fear that the principles that I hold most dear are endangered in the long run (and not so long run) by being so closely associated with this toxic figure.

Continue reading

Wajahat Ali: If Amy Coney Barrett Were Muslim

In today's New York Times, Wajahat Ali wrote a column titled, If Amy Coney Barrett Were Muslim. Drawing parallels with Judge Barrett's Catholic background and experiences, Ali points to the scurrilous and bigoted comments made by many on the right about Muslims in public life. While I am disappointed that he compromised the strength of his argument by ending with a political attack on Judge Barrett's judicial philosophy (confirming leftist bona fides is apparently obligatory these days at the New York Times), Ali's column strikes me as a sadly fair description of hypocrisy and anti-Muslim antipathy among many Americans, including those who claim to care about protecting religious faith.  Ali's column should be read by every faithful Catholic, both to be reminded of the importance of a robust understanding of religious liberty and to stand in solidarity with our Muslim brothers and sisters when they suffer bigoted attacks and ignorant attitudes.

 

 

Dignitarian Feminism on National Public Radio, and more

Yesterday, I had the opportunity to discuss what I call "dignitarian" feminism on NPR's On Point with host Meghna Chakrabarti and Fatima Goss Graves of the National Women's Law Center. Here's the audio. I spoke about a similar topic with the Catholic Association's lovely Grazie Christie on their podcast, Conversations with Consequences.  Grazie and I also gushed for a bit about the brilliance, generosity, and humility of Judge Barrett. (By the way, if you haven't listened to the episode with Adrian Vermeule and Patrick Deneen, I'd highly recommend it.)

And here's a very short piece I have up at CNN this AM on the first day of the hearings:  "One cannot help but conclude by the actions on the part of the Democrats on Monday that the case against confirming Judge Barrett is a very poor one, indeed. Let's face it: Her qualifications are impeccable, her originalist philosophy now quite mainstream, and her dispassionate and self-possessed temperament the very best one could hope for in a judge."