Mirror of Justice

Judge Barrett on Stare Decisis and Methodological Disagreement

I have an essay at First Things that lays out my understanding of what Judge Amy Coney Barrett has written about stare decisis and the fact of methodological disagreement in constitutional interpretation. The essay in part aims to correct this grossly misinformed and error-saturated piece published at Commonweal. But in much larger part, it tries simply to do justice to Judge Barrett's view in her scholarly work. A bit:

Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means. 

For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.” 

As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it. 

Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.” 

This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.

Braver Angels: "What We Will Do to Hold America Together"

Braver Angels, a diverse group of people of different backgrounds and political beliefs, strives to bring America together and help move us in a united way toward the common good.

"What We Will Do to Hold American Together" is a public letter speaking to unity in these divided times.

You can read -- and sign -- the letter here.

My Letter to Michael K. Young, President of Texas A&M, in support of the Academic Freedom Rights of Professor Wendy Leo Moore

Dear President Young:

I am a professor of jurisprudence at Princeton University and a scholar who has devoted a great deal of effort to the cause of protecting academic freedom. I myself happen to be a political conservative—an outspoken one. I believe that principles of academic freedom, properly understood, equally protect members of college and university communities (faculty and students alike) irrespective of their political stances or commitments.

My purpose in writing is to urge that the academic freedom rights of Professor Wendy Leo Moore be strictly respected and that no disciplinary action be taken against her for participating in the so-called scholars strike for racial justice. I understand that a memo was circulated in advance of that activity informing faculty that their participation would be deemed a violation of a Texas laws prohibiting strikes by state employees. It seems to me, however, that the so-called strike (with which I myself was not in sympathy) was not the sort of work stoppage contemplated by the laws, or the sort of action that laws could prohibit without running afoul of basic principles of academic freedom. On this score, some of the points made by Jonathan Friedman of PEN America’s campus free speech program seem valid—and compelling—to me.

We live at a time when the academic freedom rights of politically conservative students and professors are frequently violated, or are improperly narrowly interpreted, on campuses around the country. In Professor Moore’s case, however, it is a person on the left end of the ideological spectrum whose rights are under threat. Just as progressives should be speaking out in defense of the rights of conservatives when they are dishonored, conservatives should join in defending the rights of people on the left when their rights are in jeopardy. As I noted, principles of academic freedom, correctly understood and applied, equally protect people of any and all political persuasions. Hence I am writing to add my voice to those asking you to honor fully Professor Moore’s rights to academic freedom.

Yours sincerely,

Robert P. George

Letter of Gratitude to Most Rev. Charles E. Blake, Presiding Bishop, Church of God in Christ, Rev. Eugene F. Rivers, and others

October 5, 2020

Dear Bishop Blake, Pastor Rivers, and other esteemed clergy and Christian leaders:

We are Catholic scholars who write as your brothers and sisters in the Christian faith to express our gratitude for your bold and compelling defense of Amy Coney Barrett against the bigotry directed toward her because of her Catholic faith, and her family’s membership in an ecumenical Christian charismatic community:  https://110c6a4e-4c9f-4c15-bc98-ca4791e6331d.filesusr.com/ugd/f15948_f95ac6406c23439aa5470941a6029767.pdf

The moral witness of the historic Black churches, notably including the Pentecostal-Charismatic and Full Gospel churches you lead and serve, is always powerful. Like the grace of Almighty God, which is bestowed abundantly, your witness is generously given on behalf of any and every person who is subjected to or threatened with injustice. You understand, as Dr. King understood, that “a threat to justice anywhere is a threat to justice everywhere.”

Bigotry has raised its ugly head against Judge Barrett because she is the “wrong kind of Catholic”—a faithful Catholic. Yet as disturbing as it is to see the revival of anti-Catholic prejudice, it is even more heartening and inspiring to witness the prophetic stand you have taken against it. It is most impressive that you did not wait to be asked to speak out, but rather acted on your own initiative the moment you saw a faithful Catholic woman being threatened with discrimination and exclusion based on her faith.

Reflecting on the example you have set for us and for all men and women of goodwill, we recall Our Lord’s teaching: “Blessed are those who hunger and thirst for righteousness, for they shall have their fill.”

With the highest respect and esteem,

 

Robert P. George

McCormick Professor of Jurisprudence

Princeton University

Mary Ann Glendon

Learned Hand Professor of Law emerita

Harvard University

 

Hadley Arkes

Edward N. Ney Professor of Jurisprudence and American Institutions emeritus

Amherst College

Founder and Director, James Wilson Institute on Natural Rights & the American Founding

J. Joel Alicea

Assistant Professor of Law

The Catholic University of America Columbus School of Law

 

Rev. Nicanor Pier Giorgio Austriaco, O.P.

Professor of Biology and of Theology, Providence College

Visiting Professor of Biological Sciences, University of Santo Tomas, Philippines

Francis J. Beckwith

Professor of Philosophy & Church-State Studies

Baylor University

Rev. Stephen L. Brock

Professor of Medieval Philosophy

Pontifical University of the Holy Cross

Gerard V. Bradley

Professor of Law

University of Notre Dame

John M. Breen

Georgia Reithal Professor of Law

Loyola University Chicago

Christian Brugger

Professor of Moral Theology

St. Vincent de Paul Regional Seminary

Teresa S. Collett

Professor of Law

University of St. Thomas School of Law (MN)

 

Patrick J. Deneen

Professor of Political Science

David A. Potenziani Memorial College Chair of Constitutional Studies

University of Notre Dame

Eduardo Echeverria

Graduate School of Theology

Sacred Heart Major Seminary

Kevin L. Flannery, S.J.

Emeritus Professor of Philosophy

Pontifical Gregorian University

 

David F. Forte

Professor of Law

Cleveland-Marshall College of Law

Cleveland State University

 

Matthew Franck

Associate Director

James Madison Program in American Ideals and Institutions

Lecturer in Politics

Princeton University

 

Rick Garnett

Professor of Law

University of Notre Dame

Mary Rice Hasson

Director, Catholic Women’s Forum

Ethics and Public Policy Center

 

Mary Healy

Professor of Scripture

Sacred Heart Major Seminary

 

Carson Holloway

Professor of Political Science

University of Nebraska at Omaha

 

Christopher Kaczor 

Professor of Philosophy

Loyola Marymount University

 

Patrick Lee

John N. and Jamie D. McAleer Professor of Bioethics

Franciscan University of Steubenville

 

Matthew J. Levering

James N. and Mary D. Perry Jr. Chair of Theology

Mundelein Seminary

 

Ralph Martin

Director of Graduate Theology Programs in the New Evangelization

Sacred Heart Major Seminary

 

Monica Migliorino Miller

Director of Citizens for a Pro-Life Society

Teacher- Sacred Heart Major Seminary

 

Michael P. Moreland

University Professor of Law and Religion

Director, Eleanor H. McCullen Center for Law, Religion, and Public Policy

Villanova University

 

Melissa Moschella

Associate Professor of Philosophy

The Catholic University of America

 

Vincent Phillip Muñoz

Tocqueville Associate Professor of Religion & Public Life

Department of Political Science

University of Notre Dame

 

Jeffrey A. Pojanowski

Professor of Law

University of Notre Dame

 

Dermot Quinn

Professor of History

Seton Hall University

 

Mark Regnerus

Professor of Sociology

University of Texas at Austin

Senior Fellow, Austin Institute for the Study of Family and Culture

 

Michael A. Reynolds

Associate Professor, Near Eastern Studies

Director, Program in Russian, East European and Eurasian Studies

Princeton University

 

Ronald J. Rychlak

Distinguished Professor of Law

Jamie L. Whitten Chair of Law & Government

University of Mississippi, School of Law

 

William L. Saunders

Fellow and Director of the Program in Human Rights, Institute for Human Ecology; 

Professor and Director of the Center for Human Rights, School of Arts & Sciences;  and

Co-Director, Center for Religious Liberty, Columbus School of Law,

Catholic University of America

 

Michael A. Scaperlanda

Gene and Elaine Edwards Family Chair in Law emeritus

University of Oklahoma

 

Gregory Sisk

Laghi Distinguished Chair in Law

University of St. Thomas School of Law (Minnesota)

 

Carter Snead

Professor of Law

Director, de Nicola Center for Ethics and Culture

University of Notre Dame

 

R.J. Snell

Director of Academic Programs

The Witherspoon Institute

 

Christopher Tollefsen

College of Arts and Sciences Distinguished Professor of Philosophy

University of South Carolina

 

George Weigel

Distinguished Senior Fellow and Chair of Catholic Studies

Ethics and Public Policy Center

 

Edward Whelan

President

Ethics and Public Policy Center

 

Bradford Wilson

Executive Director

James Madison Program in American Ideals and Institutions

Princeton University

 

(Affiliations are for identification purposes.)

Fratelli Tutti

Yesterday Pope Francis published the third encyclical (i.e., a papal letter) of his pontificate, “Fratelli Tutti,” on the theme of “fraternity and social friendship.” He explains that, though he wrote it “from the Christian convictions that inspire and sustain me, I have sought to make this reflection an invitation to dialogue among all people of good will.” At a time when COVID, racial injustice, economic uncertainty, and growing political tribalism have strained our social ties, the letter could not be more timely. Several insights are of direct relevance to our work in legal education, including how we build and steward a concept of meaningful community:

Dialogue is difficult but essential: Pope Francis writes that dialogue “calls for perseverance; it entails moments of silence and suffering, yet it can patiently embrace the broader experience of individuals and peoples. . . . [when our conversations] revolve only around the latest data; they become merely horizontal and cumulative. We fail to keep our attention focused, to penetrate to the heart of matters, and to recognize what is essential to give meaning to our lives. Freedom thus becomes an illusion that we are peddled, easily confused with the ability to navigate the internet. The process of building fraternity, be it local or universal, can only be undertaken by spirits that are free and open to authentic encounters.”

The parable of the Good Samaritan reminds us to “shoulder the inevitable responsibilities of life as it is.” Faced with “so much pain and suffering, our only course is to imitate the Good Samaritan,” as to do otherwise “would make us either one of the robbers or one of those who walked by without showing compassion for the sufferings of the man on the roadside.” We must remember that “a community can be rebuilt by men and women who identify with the vulnerability of others, who reject the creation of a society of exclusion, and act instead as neighbours, lifting up and rehabilitating the fallen for the sake of the common good.”

We are all responsible for keeping real people at the center of our work: “Solidarity finds concrete expression in service, which can take a variety of forms in an effort to care for others. . . . In offering such service, individuals learn to ‘set aside their own wishes and desires, their pursuit of power, before the concrete gaze of those who are most vulnerable . . . . Service always looks to their faces, touches their flesh, senses their closeness and even, in some cases, ‘suffers’ that closeness and tries to help them. Service is never ideological, for we do not serve ideas, we serve people,’” [and] “the scandal of poverty cannot be addressed by promoting strategies of containment that only tranquilize the poor and render them tame and inoffensive.”

Our respect for the dignity of others must be unconditional: “At a time when various forms of fundamentalist intolerance are damaging relationships between individuals, groups and peoples, let us be committed to living and teaching the value of respect for others, a love capable of welcoming differences, and the priority of the dignity of every human being over his or her ideas, opinions, practices and even sins” despite the “forms of fanaticism, closedmindedness and social and cultural fragmentation [that] proliferate in present-day society.”

Do our ambitions distract us from the needs of others? Pope Francis puts it simply: “loving the most insignificant of human beings as a brother, as if there were no one else in the world but him, cannot be considered a waste of time.” We must realize “that what is important is not constantly achieving great results, since these are not always possible. . . . it is truly noble to place our hope in the hidden power of the seeds of goodness we sow, and thus to initiate processes whose fruits will be reaped by others. Good politics [and good legal education!] combines love with hope and with confidence in the reserves of goodness present in human hearts.”

Kindness, kindness, kindness: “Saint Paul describes kindness as a fruit of the Holy Spirit (Gal 5:22). He uses the Greek word chrestótes, which describes an attitude that is gentle, pleasant and supportive, not rude or coarse. Individuals who possess this quality help make other people’s lives more bearable, especially by sharing the weight of their problems, needs and fears. This way of treating others can take different forms: an act of kindness, a concern not to offend by word or deed, a readiness to alleviate their burdens. It involves ‘speaking words of comfort, strength, consolation and encouragement’ and not ‘words that demean, sadden, anger or show scorn.’ . . . Kindness frees us from the cruelty that at times infects human relationships, from the anxiety that prevents us from thinking of others, from the frantic flurry of activity that forgets that others also have a right to be happy. . . . Kindness ought to be cultivated; it is no superficial bourgeois virtue. Precisely because it entails esteem and respect for others, once kindness becomes a culture within society it transforms lifestyles, relationships and the ways ideas are discussed and compared. Kindness facilitates the quest for consensus; it opens new paths where hostility and conflict would burn all bridges.”

As lawyers and legal educators, what simple steps might we take to integrate the Pope’s reminders with the work we have before us? This year has been shaped powerfully by disappointment and loss. How could we reframe the experience of this year with a renewed “openness that allows us to acknowledge, appreciate and love each person, regardless of physical proximity?”

Jeannie Gaffigan: On being Catholic and voting for president

Jeannie Gaffigan, wife of my favorite comedian Jim Gaffigan and, as the link shows, a talented writer, devout Catholic, and thoughtful Catholic citizen, has a piece in America titled: “My loved ones told me ‘real’ Catholics vote for Trump. Here’s my response.”

Matthew Sitman's misguided attack on Judge Barrett

In Commonweal, Matthew Sitman has a misguided piece that (among other things) engages egregiously in what the kids today call "gaslighting" and displays a disappointing lack of concern with accuracy and context when it comes to Judge Barrett's record on the Seventh Circuit.  Michael Sean Winters calls it "great writing and great analysis", and while the prose is fine, the "analysis" is quite unsatisfactory.

For starters, Sitman dismisses the nasty (indeed, loathesome) character of some of the attacks on Barrett (both three years ago and now) as a "handful of regrettable articles" and "the inevitable awfulness of social media."  Social media is awful, true, but for Sitman or anyone else to pretend that the nature of the attacks on Barrett have not reflected hostility to Catholicism (that is, hostility to Catholicism unpurged of those features that are uncongenial to contemporary progressivism) is, to use his words, to inhabit an "alternate reality."  In that reality, it is those who are clear-eyed about this fact -- rather than those who post memes of Judge Barrett in goofy red "handmaid" costumes or who attack her as a racist for adopting children from Haiti -- who are engaging in "culture war theatrics."  

The gaslighting section of the piece is followed with some cut-and-paste-and-link paragraphs to others' hackish pieces containing what purport to be, but are not, descriptions of Barrett's legal views and decisions that, it is said, are examples of her "appalling" record.  It does not appear that Sitman has read (or, if he has, it is clear that he either does not care, or does not understand, the content of) Barrett's scholarly articles and judicial opinions.  He repeats the allegation that Barrett poses a "threat . . . to the Affordable Care Act" but never actually engages (or even mentions) the question presented in the upcoming ACA case, which has to do with "severability" (and not with the congressional-power question that was at issue in Chief Justice Roberts's Sebelius opinion, 8 years ago, which Barrett (quite reasonably) criticized.  Almost no legal expert believes there is a real chance that a majority of the justices (if any of the justices) will conclude that the ACA is, in its entirety, now unconstitutional.  This is a made-up threat, designed to give Judge Barrett's opponents something to talk about besides her children and her religion.  He links to an overheated critique of an article that Barrett wrote on stare decisis, but does not appreciate that, in fact, Barrett holds the unremarkable view, shared by pretty much everyone, that stare decisis is an important principle, but not an "inexorable command."

Then, there are a series of mentions of Court of Appeals decisions -- one involving immigration, another involving prison guards' excessive force, another involving GrubHub drivers, another involving felons' gun-possession rights -- in which, it appears, Barrett failed to vote for the litigation position of the party with whom Sitman (or those whose descriptions and summaries he links to) sympathizes.  Of course, this is not how judging, or law, is supposed to work.  There's no consideration of the content of the duly enacted (whether wisely or not) laws that are being interpreted or applied, no discussion of the cases' procedural histories and posture or of the precise questions presented, and no interest in what the correct legal answer to those questions might be.  Judge Barrett has written about 100 opinions, and voted in many, many more.  It would have been quite a thing if, in every one of those cases, the legal conclusion that lines up with Sitman's sympathies and priors had been the right one.  If he were to examine three years' worth of appellate-court votes by the Seventh Circuit's most "liberal" member -- say, Judge Diane Wood -- or of Judge Merrick Garland, or of the late Justice Ruth Bader Ginsburg, Sitman would find, I can assure him, some cases where a sympathetic immigrant, worker, or prisoner lost, because his or her legal position was incorrect.     

Sitman concludes that "[n]o one should object to Barrett joining the Supreme Court because she is a conservative Catholic[.]"  But, it is difficult to avoid the conclusion that this is precisely why he, like many of Barrett's other detractors, objects.

Incidental Burdens on First Amendment Freedoms

Very interesting essay by Charles Capps in Notre Dame Law Review here.

Abstract 

This term, the Supreme Court will revisit the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of free-exercise exemptions. But no one has discussed the implications of two lines of cases in which the Court has applied strict scrutiny to incidental burdens on speech—NAACP v. Alabama ex rel. Patterson and its progeny, and Roberts v. U.S. Jaycees and its progeny—for the problem of free-exercise exemptions. This Essay argues that, together with O’Brien, these two lines of cases support a regime in which incidental burdens on religious exercise trigger intermediate scrutiny, unless they take the form of interference with a religious institution’s selection of its ministers (the “ministerial exception”) or pressures on a person to violate her religious conscience (the “conscience exception”), in which case they trigger strict scrutiny.