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.

Wednesday, May 28, 2025

Garnett on the St. Isidore non-decision

Here is a short piece I did, for the Law & Liberty website, on the recent non-decision in the St. Isidore case.  It's called "Educational Pluralism Delayed".  Here is a bit:

The longstanding American constitutional experiment in religious freedom is not, and never has been, anti-religious. Our governments are “secular,” but they need not and should not be “secularist” in the sense of being hostile to religious institutions and their work and witness in the public square. To be sure, we wisely distinguish between religious and political authorities. We don’t let governors pick bishops, and we don’t let bishops set tax rates. This is what the “separation of church and state,” correctly understood, means. This distinction does not preclude cooperative arrangements between authentically religious schools and governments in the service of opportunity and pluralism.

Although the justices did not reach the merits in the St. Isidore case, their “tie goes to the lower court” order should not be seen as a retreat from settled and sound constitutional principles or as closing the door to innovative policies and programs that expand kids’ access to educational options. There is nothing about public education, properly conceived, that limits it to the work of public employees in government-owned buildings. Children and families benefit, and communities do, too, from pluralism in education. Despite the delay caused by the St. Isidore split, it is increasingly clear that this pluralism is precisely what Americans want.

May 28, 2025 in Garnett, Rick | Permalink

Tuesday, May 27, 2025

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the sixteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2025.  The prize will be awarded at the 2026 AALS Annual Meeting in New Orleans.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2025.

May 27, 2025 in Garnett, Rick | Permalink | Comments (0)

More from Mary Leary on Flannery O'Connor and Criminal Law

Thank you, Rick, for highlighting my forthcoming article, "Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law."    I thought MOJ readers might appreciate a little context on my journey to write this rather unusual article for a law professor. 

As many MOJ readers are aware, 2025 is a huge year for one of America’s most famous Catholic icons, Flannery O’Connor, whose 100th birthday is being celebrated throughout the country and the world.  There have been numerous conferences in Georgia, Torun, and this summer in London to celebrate the O’Henry Prize and National Book Award winner.  In addition to these conferences, many news outlets have covered the tremendous impact of O’Connor and the lessons she still has for contemporary America (WSJNYTArtsATLSavannah Morning News ), not to mention the release of Ethan Hawke's feature film: Wildcat.  

While one may think the lessons O’Connor has for us are limited to literary or theological, I was fortunate to have an experience last Spring which reminded me she has a great deal to say about the law – and that was the beginning of this forthcoming article.

Last Spring, I had the pleasure of teaching as a visiting professor at the University of Georgia School of Law in Athens, Georgia.  What is a nice Irish Catholic law professor from New England to do when living in Georgia for four months?  Well, head to the Archives of Flannery O’Connor at Georgia College and State University and begin researching an article, of course.

It was here in the archives, surrounded by draft speeches and earlier versions of stories that I had a very O’Connor-esque experience.  I originally intended to research how O’Connor was influenced by true criminal law events and how they found their way into her stories.  However, as is so often the case with O’Connor, what one expects, and what O’Connor has in mind are two very different outcomes. 

Once in the archives I was able to see how actual violence and crime she or her community experienced found its way into her stories, as well as how she used the law to comment upon the treatment of the vulnerable in society.  But she had much more in store.

Quite unexpectedly,  I also saw up close her deep vocational approach to her writing - especially at a time when she felt society was not open to her message or, in her words, was a “hostile audience.” While reading these letters and draft speeches about the challenges of moving an audience to see events they do not want to accept (in her case to have the post war materialistic secular world see the presence of grace), she brought me right back to my early days as a child abuse/family violence prosecutor.  Even today, in those courtrooms women and children who suffer serious abuse are often ignored or disregarded by judges and attorneys. 

O’Connor described her work as trying to reach this unwelcoming audience by capturing their attention (“to the hard of hearing you shout, and for the almost-blind you draw large and startling figures.”).  Similarly, the prosecutor – or indeed any attorney representing the vulnerable – faces an uphill battle of convincing a jury that unimaginable violence has been inflicted on a vulnerable person.  This is a message jurors often do not want to hear because it is too disturbing and challenges their own sense of security.  But they also do not want to believe it because it often comes from the mouths of the marginalized: a segment of society that is literally pushed to the margins as unimportant and not worthy of attention. 

Both O’Connor and such an attorney are in a sense "screaming into the system," hence the title to the piece.

Therefore, what emerged from the research was an article which not only describes the influence of the law on O’Connor, but a symbiotic relationship in which O’Connor can influence today’s lawyers.  Her vocational approach to her writing - especially at a time when she felt society was not open to her message - speaks very much to today's legal advocates.  This is especially true for today’s advocates who speak for the voiceless and find themselves greatly frustrated by the odds stacked against them.  The article explores this give and take(the symbiotic relationship) and argues that O’Connor offers today’s legal advocates an inspirational framework on how to approach this important work at a time when the country is so eager to silence the marginalized. 

May 27, 2025 in Garnett, Rick | Permalink | Comments (0)

Monday, May 26, 2025

Steven Smith on "The American Proposition"

We had the honor, last Fall, of hosting Prof. Steven Smith (University of San Diego) for the annual Rice-Hasson Lecture at Notre Dame Law School.  His talk has been published in the (excellent) Church Life Journal, and you can read it here.  It's called "The American Proposition:  Whose Truths? Which Strategies" and is, obviously, inspired by John Courtney Murray's famous 1960 book, We Hold These Truths.  Here's a bit:

Murray’s interpretation of America reflected . . . a confidence that there is such a thing as truth, including moral and political truth. That humans have some capacity to discern such truth—and to reason about it. That one of those truths—the primary truth, actually—is the reality of a God who takes an interest in the affairs of human beings, including their political affairs. That even under conditions of pluralism, a human community should be based on truth—or on the community’s best efforts to discern and articulate truth. And that the relevant truth would itself prescribe not an imposed orthodoxy but rather freedom—freedom especially in matters of thought, speech, and religion. (This last point, by the way—namely, that the truth prescribes freedom—is central to a very different and important current debate that I will allude to later.)

In a condition of freedom, fallible human beings will disagree about the truth. But they can debate such questions in civil fashion. Or so Murray contended. And civilly engaging your neighbor about fundamental matters on which you disagree is not an affront or an insult; on the contrary, it is a manifestation of respect for your neighbor’s beliefs, cognitive capacities, and character. And this kind of civil engagement about truth is the basis of the American Republic. As Murray put it: “Civilization is formed by men locked together in argument.”

At the time his book appeared, there was nothing especially heterodox about his position. . . . 

May 26, 2025 in Garnett, Rick | Permalink | Comments (0)

Tuesday, May 20, 2025

Mary Leary on Flannery O'Connor and the Criminal Law

Our own Prof. Mary Leary (CUA) has posted a fascinating paper, "Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law."  Here is the abstract:

This year marks the 100th birthday of one of America’s most influential writers in history – Flannery O’Connor.  Much has been written about the violence in Flannery O’Connor’s work, but relatively little about the criminal and legal aspects of the violence.  This is rather surprising given the author’s documented influence from actual crimes in stories such as A Good Man is Hard to Find and The Partridge Festival.  It is also surprising given her use of crimes (including homicide, fraud, human trafficking) in her work, as well as her particular focus on the marginalized and vulnerable.  O’Connor herself noted that she often used violence to capture her audience’s attention in an effort to ultimately bring them to her point.  This paper explores that influence on her work through original research at the Flannery O’Connor Archives.

However, as these original documents demonstrate,  with all things that involve Flannery O’Connor, there is much more to this examination than simply how she was influenced by criminal events.  With many of these criminal events, the law played a critical role in the violence, often acting as its catalyst.  Furthermore, as with many criminal events, the poor and vulnerable suffered at the hands of an uncaring society.  O’Connor saw this and utilized the criminal law to comment upon this societal reality.  This law played a critical role in her literature not simply as a historical fact or inspiration, but as a silent character.  More to the point, this silent character’s frequent failure to protect the vulnerable is a repeated theme in O’Connor’s fiction. 

This symbiotic relationship between the criminal law, violence, and O’Connor’s fiction is not only one where O’Connor was influenced by and utilized actual crime and violence in her writing.  But it is also one where she can be a profound inspiration and influence on the modern criminal justice system’s advocates.

O’Connor’s vocational approach to her writing has much to offer the modern justice system’s advocates.  Drafts of her talks in the O’Connor Archives demonstrate that she was challenged to write for an audience whose values and modern sensibilities were hostile to her messages of what she called the “prophetic vision” of truth, judgment, grace, and mercy.  The modern criminal justice advocate finds herself similarly challenged.  Tasked with protecting the most vulnerable – often the unseen or undervalued in society – she must convince a jury to see and value such people and to understand the truth of what has occurred enough to do something unpopular in today’s culture: render a judgment.  Presented with unspeakable violence, this advocate must convey it to her audience, the jury, who often is resistant to believing it occurred.  O’Connor frequently wrote about the writer’s “sense of frustration [being] great because [the writer] has to force by whatever means he can this vision on a resisting or a blank audience.” (Catholic Writer in the Protestant South – draft talk for Southern Literary Festival, April 20, 1962) How O’Connor navigated that vocation to bring an audience to a place of understanding people and truth can operate as a significant influence on those today forged with that task.

This paper examines the synergistic relationship between Flannery O’Connor’s fiction, crime, violence, and the criminal law and what it can offer the modern criminal justice system – a system characterized by a search for truth and justice.  It will also suggest that O'Connor offers an inspirational framework for those who participate in the system as advocates for the vulnerable.

May 20, 2025 in Garnett, Rick | Permalink

Thursday, May 15, 2025

Gerry Bradley on Fr. Burke: "Creating U.S. Catholicism"

My friend and colleague Prof. Gerry Bradley has a great review in the latest First Things of a book about a fascinating and crucially important character in U.S. Catholic history -- about whom I didn't know much before the review, I have to admit -- Fr. John Burke.  Here's a bit:

Walter Lippmann, one of the founders of the New Republic and for sixty years a journalistic man-about-the-globe, judged him to be the “most impressive man I have ever met.” Castle confided to his diary that “I should like him and at the same time be afraid of him.” The man was “so adroit and persuasive” that Castle feared “he would make me promise something that I did not want to promise.” This from America’s number two diplomat during the Hoover administration.

The man of whom these notables spoke was not a politician or a bishop or a titan of industry. He never had any money or held an academic position. He was by all accounts—including his own—an introvert, a lover of solitude. He suffered from perennially poor health and endured long periods of rest at doctor’s orders. Born in Manhattan to working-class Irish immigrant parents and educated in local public and parochial schools, he longed throughout his public career to return to his native New York City, to the editorship of the Catholic World magazine, and to his “spiritual family,” comprising devout Catholic women with whom this unmarried man worked and with whom he maintained deep—and transparently chaste—friendships. He tried several times to leave the post that made him collaborator and confidant of Presidents Coolidge and Roosevelt. His episcopal employers refused to accept his resignation. “They said he could come and go to the office as he pleased and take whatever vacations he needed,” writes Douglas Slawson in his magisterial new biography of Fr. John J. Burke. The bishops “simply wanted benefit of his judgment."

Read the whole thing!

May 15, 2025 in Garnett, Rick | Permalink | Comments (0)

"A Leonine Revival"

Today, as it happens, is the anniversary of Rerum novarum, and as readers of this blog no doubt know, its author, Pope Leo XIII probably wrote as much as any post-French Revolution pope on matters relating to Church, State and Society.  (Check out Russ Hittinger's "The Three Necessary Societies", from a few years back.)  Here is a new essay, in First Things, called "A Leonine Revival", which I thought was outstanding.  It's by my friend Thomas Joseph White, O.P. (a super smart Thomist-guy), and here's a taste:

Pope Leo XIII published his landmark encyclical Rerum Novarum in 1891, only twenty-five years before the outbreak of the 1917 Communist Revolution that would mark the modern world irrevocably. In that document, he sought to indicate a middle way between two extremes. On the one side, Leo was responding to the new and revolutionary changes emerging from the creation of industrialist capitalism. Against the exploitative practices of elite industrialists, Leo sought to underscore the rights of workers to reasonable working hours, a just wage, self-organization, and access to a range of human goods that should be protected and advanced in some way by the state. Here we can think of goods such as the just rule of law, education, health care, political freedom of expression, and freedom of religion, all goods that the magisterium has underscored in the hundred and fifty years since the time of Rerum Novarum. On the other side, Leo was responding to the emergence of secular “socialism,” as he called it, which would seek to deny the rights of private property, abolish the role of religion in public life, and claim authority to redefine the natural human family (especially by new divorce laws, which de facto suggested that the Church cannot publicly identify or define what either natural or sacramental marriage is). Here he was essentially seeking to confront the theoretical absolutization of the state as an ultimate authority in all human matters. 

Needless to say, these are timely considerations. 

 

May 15, 2025 in Garnett, Rick | Permalink

Thursday, May 8, 2025

Building Better than Students for Fair Admissions

The Supreme Court’s decision and opinions in Students for Fair Admissions (2023) got me thinking hard again about questions of basic human equality that I first explored (with Jack Coons) back in By Nature Equal: The Anatomy of a Western Insight (Princeton Univ. Press, 1999).  The result is a new paper, A Constitution for Equals? Building Better than Students for Fair Admissions, which is now available here.  What I have come to understand is the extent to which Enlightenment political philosophers’ claims about our being (in Jeremy Waldron’s phrase) “one another’s equals” were custom-made to fit the lowered purposes of modern political ordering.  Aiming to build better, the paper begins by working dialectically through the contributions of Hobbes, Locke, Montesquieu, the Declaration of Independence, Tocqueville, Lincoln, Harry Jaffa, Michael Zuckert, Anne Phillips, and many others in order to show that human equality properly understood is not, as Harvey Mansfield has warned, a dangerous “half truth.”  Properly understood, basic human equality is, rather, a higher truth — a higher truth that does not require us to be blind to the lesser facts of our important differences and diversity that have their own social purposes in God’s providence.  That higher truth, as Tocqueville saw, is that we are equals because we are all created in the image and likeness of God.  

The aim of the latter portion of my paper is to reground our written Constitution in our unwritten constitution’s commitment to the higher truth of  Christian understanding of our basic human equality amid our important differences.  This effort in regrounding is assisted by the work of Orestes Brownson as well as more recent work by Wilson Carey McWilliams, Peter Lawler, Richard Reinsch, and others.  By reclaiming for our written Constitution a premodern understanding of basic human equality already lodged in our unwritten constitution, we will be better able to solve some of the problems presented in a case like Students for Fair Admissions.  Specifically, questions about university admissions will be answered on the basis of doing justice among human equals who may have very different relevant capacities and, therefore, on the basis of an applicant’s capacity to contribute to the common good of the university community — not on the basis of race.   

May 8, 2025 in Brennan, Patrick | Permalink