Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, December 17, 2018

Richard Ekins's "Judicial Power Project"

I wanted to direct a little notice to the very fine "Judicial Power Project" run by Professor Richard Ekins. The project has put together a few very interesting programs. Here are two:

First, an online collection of essays, the lead piece of which is by John Finnis ("Judicial Power: Past, Present, and Future"), and subsequent responses by various distinguished jurists, with a reply by Professor Finnis.

Second, an online symposium on a new book by Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review. The book's core claims concern the mismatch between the empirical judgments made by judges in constitutional rights cases and the institutional capacity of courts to make such judgments. The online symposium contains responses by several prominent legal scholars and judges, including Professors Adrian Vermeule and Erin Delaney, as well as Professor Ekins himself.

December 17, 2018 in DeGirolami, Marc | Permalink

Friday, December 7, 2018

The Tradition Project, Part III: The Value of Tradition in the Global Context

Next week, the third and final conference of the Tradition Project kicks off in Rome: "The Value of Tradition in the Global Context." The conference is the product of the joint labor of three institutions: LUMSA University in Rome (with our colleague Monica Lugato taking the lead), Villanova's Eleanor H. McCullen Center for Law, Religion, and Public Policy (ably stewarded by our MOJ colleague, Michael Moreland), and the Center for Law and Religion at St. John's Law School (directed by Mark Movsesian and me).

This session will feature a public address, on December 12, by Associate Justice Samuel A. Alito, Jr., of the United States Supreme Court, and four private workshops on the conference themes, ranging over the political, cultural, and legal dimensions of the role of tradition in the world today. Rick Garnett and Adrian Vermeule will be in our number as well. Here is the program.

December 7, 2018 in DeGirolami, Marc | Permalink

Monday, November 19, 2018

Legal Spirits 002: The Peace Cross Case

Mark Movsesian and I have our second Legal Spirits podcast up. This one is about the cert. grant in the so-called "Peace Cross" case out of Maryland. The 2-1 opinion in the Fourth Circuit was American Humanist Association v. Maryland-National Capital Park and Planning Commission.

Mark and I go through the facts (some of which are contested), the circuit opinion, the cert. petition, and the arguments about the Establishment Clause in these state-sponsored religious display cases likely to be confronted by the Supreme Court.

November 19, 2018 in DeGirolami, Marc | Permalink

Tuesday, November 13, 2018

CEC Panel on Shield or Spear? The Power of Speech

Apropos of the exchange below concerning liberalism and Catholicism discussed by Rick and Adrian, and in particular with respect to Rick's suggestion that Michael Moreland might represent the missing Murray option, here is a discussion that Michael, Rick, and I had concerning the state of free speech in the US at the conference where all of the other thinking and talking was going on. 

It does not address the central issues of those other interactions directly. But it does so at least obliquely. You can get a sense for some of the range of that disagreement (but also for many areas of agreement) in the different positions that we each hold.

November 13, 2018 in DeGirolami, Marc | Permalink

New paper: "The Sickness Unto Death of the First Amendment"

I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

November 13, 2018 in DeGirolami, Marc | Permalink

Tuesday, November 6, 2018

Legal Spirits Podcast: "A British Version of Masterpiece Cakeshop?"

I'm pleased to announce that our Center's new podcast series, Legal Spirits, is underway!

In this first podcast, Mark Movsesian and I chat about the "British Masterpiece" case, Lee v. Ashers Baking Co. decided by the UK Supreme Court a few weeks ago, and we speculate about what its reasoning might suggest for future cases in the US of this kind.

Legal Spirits podcasts will address a broad range of interesting cases, issues, and ideas involving law and religion. Look for our next one about the recent 4th Circuit Establishment Clause cross case just taken by the Supreme Court, the consolidated The American Legion v. American Humanist Association/Maryland-National Capital Park and Planning Commission v. American Humanist Association.

November 6, 2018 in DeGirolami, Marc | Permalink

Sunday, September 16, 2018

Robert Louis Wilken at the Center for Law and Religion

We are delighted to host Professor Robert Louis Wilken (the author of one of my favorite books on the history of the early Church) tomorrow to discuss his forthcoming book, "Liberty in the Things of God." 

Professor Wilken's presentation is the first at our Colloquium in Law and Religion this fall, a seminar at St. John's Law School that my colleague, Mark Movsesian, and I co-teach. More soon on the substance of Professor Wilken's very interesting new book concerning the intellectual origins of the idea of religious freedom.

September 16, 2018 in DeGirolami, Marc | Permalink

Monday, September 10, 2018

First Things Supreme Court Roundup: "Kennedy's Last Term"

Kevin Walsh and I have this year's Supreme Court roundup at First Things: Kennedy's Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call "the influence of social, technological, and moral change on Supreme Court doctrine" (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii. 

Something from the conclusion:

What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.

But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.

Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.

We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the ­institution.

The shift on the new Court should be measured not by the distance between Kennedy and ­Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerry­mandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.

Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.

Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.

September 10, 2018 in DeGirolami, Marc | Permalink

Monday, August 20, 2018

Delahunty & Ratelle on Giving the Laity a (Nonbinding) Role in Appointments of Diocesan Bishops

Here is an interesting and provocative proposal by Professor Robert Delahunty and Mr. Andrew Ratelle in response to the ongoing crisis of the Church concerning widespread, decades-long sexual abuse of children by bishops and other clerical leaders.

The crux of the proposal concerns lay involvement in appointment and removal of bishops. A bit from the post:

Revolutionary as it may yet seem, lay involvement in Church governance is by far the norm throughout Christian history. The clergy was one of two pillars that upheld the universal Church. The second was historically the nobility—the knights, landowners, and men of property—whose practical means and expertise propped up, and occasionally held in check, the more spiritual mission of the priests and bishops. Historically, the nobles were in turn supported by the peasantry, commoners who lived by the work of their hands in exchange for the protection offered by their feudal employer.

As the middle ages developed, an increasing number of social gradations between these two lay classes appeared until the dawn of the modern age, when the nobility and the commoners effectively joined into once distinct class. The knight and the peasant are essentially one, with the modern laity taking a share of the responsibilities of both. It is their duty not just to provide for, but to defend, the universal church, exercising their role in a range of natural competencies best suited to their state in life. Lest we forget it was the advocacy of two extraordinary members of the laity, in the persons of St. Francis of Assisi and Catherine of Siena, who helped correct the errors of the papacy in their own time. Chivalric orders like the fiercely independent Knights Templar held both the clergy and royalty in check for generations because of their roles not just on the battlefield, but in the financial sector. It was the Christian laity that held the line against apostate bishops and Emperors during the time of the Arian heresy, and it was laymen like Dante Alighieri, who put their professions on the line in condemnation of corruption in the Vatican.

The failure to recognize this normative function of the laity creates the conditions in which abuses like the current McCarrick scandal emerge. No single blog post can hope to cover the full scope of what the laity’s response should be.  We aim here only to start a conversation by making five suggestions ....

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

More ambitiously, we recommend that local parishes, priests and lay people be involved directly and substantially in the appointment and removal of the bishops of their dioceses.

In the early centuries of the Church, the popular vote of the faithful decided the nomination and election of bishops. St. Cyprian believed that these procedures prevented unworthy persons from becoming bishops. The great St. Ambrose of Milan, who converted the still greater St. Augustine of Hippo, was popularly elected bishop as a compromise candidate even while he was still an unbaptized layman!

In the fifth century, Popes Celestine I and Leo I condemned any attempt to impose a bishop without popular consent. The practice began changing in both the Eastern and Western Roman Empire in the early middle ages. In the West, popular elections remained, but Kings (themselves laymen) began to control nominations to vacant sees. Later still, episcopal elections were limited to cathedral canons – the clerical administrative staff of the bishops. In 1485, Pope Innocent VIII removed any reference to elections in the rite of consecration for a bishop. In 1917, the Code of Canon Law confirmed the papal right to appoint all bishops.

We are not recommending a revival of the early elective practice in pure form. Rather, we envisage a voluntary, non-binding commitment on the part of the Pope that he will only appoint as bishops those candidates who have been nominated by the parishes—i.e. priests and laypeople—of the dioceses that those bishops will lead. If the Pope so desired, the practice could vary from one country to another.

Because these arrangements would be non-binding, they would not alter canon law. Moreover, the Pope could stipulate that the agreement held only for the duration of his Papacy, and did not in any way commit his successor. Finally, the Pope could reserve to himself the power to breach or retract the agreement on any occasion.

I mostly wanted simply to note the argument here and the post. There is much to think about and discuss in it, and I hope my colleagues will weigh in. Lay involvement in selection/appointment implicates all sorts of complicated questions. One of these is about just what the Church would get if it went in this direction. What it will get will depend upon the formation and knowledge of the laity in Catholicism. But perhaps we are, at this point, not entitled to wish for another Ambrose or Augustine, and instead should simply insist as an initial matter on an end to the present disasters.

August 20, 2018 in DeGirolami, Marc | Permalink

Tuesday, July 10, 2018

Implications of the Umpire Analogy in Judge Kavanaugh's Scholarly Writing

Judge Brett Kavanaugh's scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial "neutrality." I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.

For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann's book on statutory interpretation), he wrote: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges." Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: "I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.

It's a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change. 

Statutory Interpretation

Kavanaugh's primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries--clear or ambiguous--to settle on. Kavanaugh argues that in consequence a judge's predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it's off and running with the substantive canons of interpretation.

Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her "best reading of the statute," guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms ("dogs, pigs, sheep, and other animals" should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that "other animals" should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the "common denominator." But I'm not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh's "best reading of the statute" approach, one which he agrees must make use of context.

The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply "finding" clarity/ambiguity, of the judge's predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public. 

Constitutional Interpretation

Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, "rather indeterminate," and at worst, "empty of real, determinate, objective meaning." They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are "mood-setters." And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.

Or consider the issue of exceptions to certain constitutional rights--the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral--non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas's dissent in Whole Woman's Health v. Hellerstedt). But one can see a critical unity in Kavanaugh's objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.

Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: "At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases." And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised "history and tradition," together with "precedent," as important for his judicial method in his acceptance last night.

We'll have to wait and see if and how these threads come together if he is confirmed.

July 10, 2018 in DeGirolami, Marc | Permalink