Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 30, 2021

Garnett et al. Amicus Curiae brief in Dobbs

I was honored to file, along with my old friend (and fellow Rehnquist clerk) Chuck Cooper and his ace team from the Cooper & Kirk firm, this amicus brief in the Dobbs case, arguing that (a) Roe was wrong, (b) Casey was wrong, and (c) both should be overrruled.  The brief's theme, in a nutshell, is "Rehnquist was right."


July 30, 2021 in Garnett, Rick | Permalink

Thursday, July 29, 2021

Brief of John Finnis and Robert George in the Dobbs Case

Prof. John Finnis of Oxford University and the University of Notre Dame and I today filed an amicus curiae brief in the Dobbs case presenting historical evidence to the Supreme Court that unborn children were understood to be persons by the framers and ratifiers of the 14th Amendment.

If we are correct--and I invite everyone to examine and assess our evidence--then the 14th Amendment's guarantees of due process and equal protection apply to human beings, as persons, at all developmental stages--pre-natal as well as post-natal--and in all conditions.
(Note: In fn. 46, “the felt-movement criterion” should instead read “it,” meaning "the Bracton six weeks criterion" (as the cited material confirms). This all shows that as early as the 1820s there were treatises teaching that law must recognize and protect a new human life from conception.)

July 29, 2021 | Permalink

Newsweek on Mike Pence

This recent article in Newsweek about former Vice President Mike Pence strikes me as that increasingly rare thing in contemporary journalism--an account of a controversial political figure that is actually fair and balanced.


The former Vice President is an old friend of mine. We were introduced to each other many years ago by Chuck Colson. Pence was, at the time a member of the U.S. House of Representatives. He would later become Governor of Indiana before being chosen by Donald Trump as his running mate in 2016.

Our friendship notwithstanding, I have not hesitated to criticize Vice President Pence--even criticize him harshly--when I believed he was wrong, The best example occurred during his Governorship after the Indiana legislature had passed and the Governor had signed into law a Religious Freedom Restoration Act. I had supported the Act despite believing that it was regrettably weak. My hope was that it would later be revised to be made more robust in protecting religious liberty rights. Things quickly went in the other direction, though. Secular progressives, especially those hostile to traditional religious beliefs about marriage and sexual morality, attacked the Act and demanded its repeal. Various major corporations and other powerful interests were induced to do their bidding, and threatened to essentially boycott Indiana as a means of bullying Pence and the state's legislative leaders into repealing it. I and many other religious freedom advocates urged them to stand strong. In the end, however, the Governor capitulated--announcing, rather pathetically, in my view, that "Indiana is open for business again."

I regarded this capitulation as shameful, and publicly called for someone to challenge and defeat Governor Pence in the Republican primary when he sought re-election. Not long thereafter, the Governor asked to speak with me and we had a long and very frank telephone conversation. He asked that we treat what had happened as water under the bridge and discuss what he and those allied with him in Indiana could do going forward to protect religious liberty rights. The steps he went on to take were good ones, and I publicly commended him for them.

I was not a supporter of Donald Trump, but I was sincere in congratulating Governor Pence when he became Vice President. I was glad he was there. Later, I would become very glad he was there. Although he was as loyal to his President as any Vice President has ever been, when he was asked to choose between personal loyalty to the President and loyalty to the Constitution of the United States, he chose correctly. The well-known fact of his personal loyalty to the President was actually an asset when he was forced by constitutional duty to deny the President's request that he use his office to, in effect,  prevent the certification of the election of Joseph Biden as President of the United States. Of course, this caused some especially fierce Trump loyalists to denounce the Vice President as a "traitor"; some of the invaders of the Capitol on January 6, 2021 even called for him to be "hanged."

The essay to which I've linked here is probably right in suggesting that it's tough to see the presidency in Mike Pence's future. Donald Trump will not forgive him, and the former President still has the support of a far from insignificant number of Americans who believe, wrongly in my view, that the election was "stolen" and that Joe Biden is not the legitimately elected President of the United States. Among those who are grateful for Pence's loyalty to the Constitution and admiring of his willingness to refuse to be pressured into compromising it, many are progressives or liberals who regard him as far too socially conservative to be eligible for their support.

Of course, we don't yet know whether the former Vice President will even compete for the Republican nomination in 2024. I strongly suspect that he would like to do that, and is even now trying to identify a pathway to the goal. And, of course, there is the $64,000 question of whether Donald Trump himself will try again, and, if so, whether he has a lock on the nomination. Whether he does or doesn't, there are quite a few plausible potential Republican candidates in addition to Pence, including former Secretary of State Mike Pompeo, who is almost certainly going to run, and Florida Governor Ron DiSantis. Whether or not Pence runs, and, if he runs, wins, the nomination and the presidency, he showed himself to be a principled man and a patriot in doing what he did on January 6th. I say this as someone who did not support Biden for President and who regrets that he holds the office (though I didn't vote for Trump either), and who, as I've noted here, was harsh in my own criticism of Pence when I believed he had acted in an unprincipled and craven manner.

July 29, 2021 | Permalink

Tuesday, July 27, 2021

"Protecting Free Exercise Under Smith and After Smith" (forthcoming, Cato Sup Ct Rev)

Doug Laycock and I have posted this draft law review article on SSRN (link here), with the title and journal information above. We discuss the specific implications of Fulton v. Philadelphia for current Free Exercise Clause standards under Employment Division v. Smith. But, as the abstract states,  

we focus on describing what approach should replace Smith, and responding to the questions that Justice Barrett raised [in her Fulton concurrence]. We argue for a flexible version of strict scrutiny, and for at least serious intermediate scrutiny. Free exercise review should typically be stronger than the weak intermediate scrutiny governing some free speech contexts: time, place, and manner restrictions and symbolic conduct. Those cases permit regulation when alternative means of communication are available, but when government substantially restricts a religious practice, frequently there are no “alternatives” to the practice. The logic and purposes of free exercise can generate a demanding but workable standard for challenges to generally applicable laws.

Comments welcome.

July 27, 2021 in Berg, Thomas, Current Affairs, Religion | Permalink

Monday, July 26, 2021

Garnett on "Fulton and the Art of Cooperation"

I posted a short piece, "Fulton and the Art of Cooperation", at the Berkley Center's website.  It's part of a larger symposium on religious freedom and LGBT issues.  Here is a bit:

The enterprise of protecting religious freedom would be straightforward and simple if all members of a political community agreed about our obligations to God and to each other or if governments did not do very much. In our communities, though, people disagree—sincerely and reasonably—about things that matter. And, governments do a lot. Conflicts, therefore, between some official actions and some religious commitments are inevitable. The law must manage these conflicts, in ways that are predictable and transparent, without denigrating those who dissent from the majorities of the moment or whose aims and aspirations depart from official policy.

Fulton’s clear ruling will not put an end to disagreements between those who endorse an expansive and expanding understanding of the role and reach of anti-discrimination law and those who continue to embrace longstanding teachings regarding marriage, family, and sexuality. To cursorily label as “bigotry” or “discrimination” the determination of persons or groups to act in accord with what they regard as—indeed, what they know to be—the truth is an unworthy strategy for negotiating these disagreements.

July 26, 2021 in Garnett, Rick | Permalink

Monday, July 19, 2021

2021 Notre Dame Prize for Religious Liberty: Acceptance speech by Commissioner Nury Turkel

The first Notre Dame Prize for Religious Liberty was presented to Nury Turkel of the U.S. Commission on International Religious Freedom at the gala for the inaugural Notre Dame Religious Liberty Summit on June 28, 2021.

Turkel, a Uyghur-American attorney and human rights advocate appointed to the commission by House Speaker Nancy Pelosi, is being recognized for his inspired advocacy on behalf of Uyghurs in western China. A largely Muslim ethnic group, the Uyghurs have courageously refused to abandon their faith and culture despite severe oppression from the Chinese Communist Party.

His acceptance speech can be viewed here: https://www.youtube.com/watch?v=xi9yFP273C8

July 19, 2021 | Permalink

Wednesday, July 14, 2021

Dobbs amicus brief on women's equality

Teresa Collett, Helen Alvare, Elizabeth Kirk, and I are crafting an amicus brief in Dobbs v. Jackson in direct response to the “women rely on abortion for social equality” argument (found in Planned Parenthood v. Casey but also in nearly all pro-choice scholarly and popular argument today). The brief is being written on behalf of professional women, women scholars and pro-life feminist organizations. 

If you are a woman with a terminal degree and would like more information about the brief or would like to sign on, contact me with your full name, degree and degree-conferring institution, and affiliation (for identification purposes only) by July 20.

And please share this post with others who may be interested in doing the same.

July 14, 2021 in Bachiochi, Erika | Permalink

The Rights of Women book launch events

The publication day for my new book, The Rights of Women: Reclaiming a Lost Vision, is tomorrow, July 15! In case any one is interested in book events, here's the list thus far: 

Public Discourse is hosting a Zoom book launch at noon on pub day, when I'll talk about the inspiration for the book and the "lost vision" I'm seeking to "reclaim," with Leah Libresco Sargeant and Alexandra DeSanctis Marr as respondents, and Serena Sigilito moderating. To register, go here

I'll also be at the Catholic Information Center in Washington DC doing something similar in person on Wednesday, July 20, this time with Mary Eberstadt and Ashley McGuire as respondents, and Ryan Anderson moderating. To save your seat, register here.

On Thursday, I'll be at Heritage for a luncheon. No promo yet, but if you're interested in attending, reach out to me at EPPC

Mary Ann Glendon (the book's modern heroine) will then join me on July 28th for a more casual and celebratory book launch in my hometown for any MOJ-reading Bostonians! For more info and to RSVP, go here.

Scheduling a NYC event for late August as we speak. Will update here. 

In case you want to get an early flavor for the book, an excerpt from the the introduction is up at Amazon now and will be published at more length at ND's ChurchLife this week. And Newsweek is publishing a bit from the book's conclusion on Thursday. 

Since readers of this blog are more likely than most to appreciate what I'm up to in the book, I'd be deeply grateful for book reviews (and Amazon totally counts!) 


July 14, 2021 in Bachiochi, Erika | Permalink

Tuesday, July 13, 2021

Police Reform and Support for Police

Of all the divisions currently plaguing American society, one of the saddest and most self-destructive has been the tendency of too many who rightly demand accountability for police misconduct to then travel down the negative path toward outright hostility to the police.  That hostility tends to be expressed along with foolish proposals to undermine law enforcement in its essential duties.

I have been a visible and active advocate for police reform:

In my scholarly work, I have highlighted the lack of accountability for public officers for egregious wrongdoing, including sexual violence.

I have been a party to amicus briefs before the Supreme Court emphasizing the vital need for a Bivens claim for federal unconstitutional behavior when no other remedy is available.  That a federal border patrol agent may shoot an unarmed Mexican teenager in the head with no consequences and no remedy is an injustice that besmirches America.  The crucial difference between a republican democracy and tyranny is that we reject arbitrary official killing.

I have successfully represented a client who won damages for excessive use of force by law enforcement officers.

I have testified before the state legislature for the end to qualified immunity and have taken on cases pro bono to challenge application of qualified immunity.

And I just recently lost a case in the U.S. Court of Appeals that well-illustrates everything that is wrong with qualified immunity.  The prison officials involved had violated the state statute and regulation guaranteeing confidentiality for prisoner calls to attorneys; they had deliberately bypassed telephone technology and protocols within the prison that were designed to prevent eavesdropping while simultaneously preventing abuse by call-forwarding; and yet a divided appellate court still granted qualified immunity because, in the court’s view, no prior court had ruled on those precise facts.  When a rogue operation in violation of protocols and state law violates the constitutional rights of another, no qualified immunity excuse should be accepted.  And when qualified immunity cloaks such officials wrongdoing, the result is to encourage officers who push the envelope.  This in turn further undermines public trust.

But one can be strongly supportive of essential police reforms and still recognize that the vast majority of police officers are good men and women serving an essential public safety role in a dangerous climate.  The grave error is to take the righteous demands for justice to the victims of police brutality and new rules to weed out miscreant police officers and translate that into an outright hostility to the police.  We must resist the delusional belief that defunding the police does anything other than embolden criminals and increase violent crime and multiply the number of victims of trauma.  Indeed, one of the causes of police misconduct is that many police departments are severely understaffed, which makes it harder to separate those officers who are unfit and more likely that officers will be over-stressed and fatigued to the point of making poor judgments.  The empirical evidence is solid that better paid and more professional police do a better job and that more police present in the community save lives and deter a surge in violent crime (see here).

So, yes, let’s speak up clearly to denounce official misconduct.  Let’s stand up and demand transparency when police use of force has occurred to ensure that abuses are detected.  Let’s never again ignore the subcultures of racism, a warrior mentality, and anti-professional behavior that exists within many police departments.

But let us also honor the heroes on our police departments who under the most trying circumstances today still report to the job and protect us.  When I see a police officer on the job, I try to say thank you and thereby remind them that the vast majority of us are not among the shrill voices of the anti-police haters.  Let’s take every opportunity to let the brave men and women who are persevering in police protection that we are proud of them.  They became cops to help people, and the people need to honor that when appropriate.

Continue reading

July 13, 2021 in Sisk, Greg | Permalink

Tuesday, July 6, 2021

The partnership between Catholics and Latter-day Saints

Cardinal Timothy Dolan had Elder Quentin L. Cook in stitches Monday while the two sat shoulder to shoulder for a videotaped interview in a room on the campus of the University of Notre Dame.

“When you talk about the essential, essential beliefs, you’re talking about we’re children of the one true God who has made us in his image and likeness, who loves us passionately, who wants us to love him back, and to love one another as brothers and sisters,” said Cardinal Dolan, the archbishop of New York. “That’s doctrine. That’s God’s revelation. And if we can’t get along, it’s downright sinful and scandalous right? Don’t you think?”

“Absolutely, absolutely,” said Elder Cook, a member of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints. “You said it perfectly.”

Then came the hook.

“And that applies to everybody,” Cardinal Dolan finished, “except Red Sox fans. You have to have some boundaries.”

Full article and video from the NDLS Religious Liberty Summit at Deseret News: https://www.deseret.com/2021/7/1/22557874/churchbeat-newsletter-catholics-latter-day-saints-lds-mormon-partners-notre-dame

July 6, 2021 | Permalink