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.

Sunday, November 22, 2020

Christ the King and "Quas Primas"

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King, which is today.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives/hearts" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

November 22, 2020 in Garnett, Rick | Permalink | Comments (0)

Tuesday, October 27, 2020

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.  

October 27, 2020 in Garnett, Rick | Permalink

Thursday, October 22, 2020

Happy Pope St. John Paul II Day!

Karol Wojtyla rockin the Chuck Taylors – TOM PERNA

October 22, 2020 in Garnett, Rick | Permalink

Wednesday, October 21, 2020

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."

October 21, 2020 in Garnett, Rick | Permalink

Friday, October 2, 2020

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.

October 2, 2020 in Garnett, Rick | Permalink | Comments (0)

Thursday, September 24, 2020

Faggioli's misguided defense of attacks on Judge Barrett

Massimo Faggioli, of Villanova University, has a habit, and makes it a practice, of importing into Catholic matters, questions, discussions, etc., the standard (tired?) political/tribal categories and characterizations of "left", "right", "culture warrior", "progressive," etc.  Because, according to his map, the lay movement "People of Praise" is "conservative", it follows, apparently, that (like all political things "conservative") it is worrisome. 

This mapping is, I suspect, what explains his Politico piece defending the ongoing attacks on/criticisms of Judge Amy Barrett's affiliation with "People of Praise" and his repeated defenses of those senators who asked clumsy (at best) and bigoted (worse) questions about Barrett's Catholicism during her confirmation several years ago.   (It should be noted, and regretted, that Politico -- an often valuable outlet -- has been trafficking recently in the completely silly insinuations about some imagined connection between Margaret Atwood's "Handmaid's Tale" and the (utterly innocuous) use, in the past, by "People of Praise" of the scripturally inspired term "handmaid" (See Luke 1:38).

In any event, the piece is misguided.  Now, it is true (quoting the headline) that politicians' and nominees' "religious beliefs" are not "off limits" to voters and senators.  (If a candidate for office sincerely held a religious belief that some persons did not possess equal human dignity as other persons, that would be a good reason to vote against such a candidate.)  What should be off-limits are (a) misrepresenting or wilfully misunderstanding a nominee's or candidate's religious beliefs and (b) applying, without justification or warrant, greater suspicion and skepticism to a candidate's or nominee's sworn testimony because of disagreement with that candidate's or nominee's religous beliefs or affilitations.  Several Democratic senators did these things during Barrett's hearings on her Court of Appeals nomination, and too many commentators and activists are doing these things now. 

All political leaders, judges, candidates, and nominees have views, commitments, ideals, attachments, loyalties, etc.  We can (and do) ask them, "if you come to occupy a position of public trust and responsibility in our political community, will you exercise your responsibility, and fulfil your role, in a way that respects our political community's laws and norms?"  If they say, under oath, "yes"; it is wrong -- it is just bigotry -- to say, "well, because you are a 'conservative' Catholic, we don't believe you.  'The dogma lives loudly,' and all that."

It is also, by the way, highly misleading for Faggioli to enlist Pope Francis in support of his anti-"People of Praise" and anti-Barrett insinuations.  The Holy Father has praised charismatic renewal as a “current of grace” in the Catholic Church.  And, in 2014, he appointed one member of People of Praise as an auxiliary bishop in Portland, Oregon.

A few years ago, a suspiciously timed and oddly sourced piece appeared in the New York Times, which also tried to hamstring Barrett's nomination with various allegations, rumors, and insinuations about "People of Praise."  It's too bad that we are already seeing a reprise.

September 24, 2020 in Garnett, Rick | Permalink | Comments (0)

Friday, September 18, 2020

"Law Like Love": Jeff Murphy, RIP

Following up on Marc's post, I was very sorry to learn of the passing of Prof. Jeffrie Murphy.  He was a wonderful scholar, deeply engaged with moral questions, and -- to me -- a kind and generous mentor when I started teaching Criminal Law (and since).  For several years now, I've been concluding my course with his "Law Like Love" essay.  Take a look.  Here's the SSRN abstract:

This is a transcript of the Kharas Distinguished Lecture that was delivered in March of 2004 at Syracuse University College of Law. John Rawls has famously said that justice is the first virtue of social and legal institutions. This lecture seeks to open a discussion of the question: What would law - particularly criminal law - be like if we regarded love (agape) as the first virtue of social and legal institutions? The lecture discusses punishment - including capital punishment - in a framework of love, and critically considers the claim frequently made that love-based forgiveness is inconsistent with capital punishment and perhaps with all punishment.

September 18, 2020 in Garnett, Rick | Permalink

Thursday, September 17, 2020

A quick response to John Carr on "Faithful Citizenship" and the election options

John Carr has an essay in America called "I helped write the bishops' first document on Catholics and voting.  Here's why I'm voting Biden, not Trump."

I have great respect for Carr, his work, and his consistent practice of thoughtful, charitable engagement.  And, I have no interest in litigating his bottom-line conclusion, which I am entirely confident was reached after careful reflection, regarding his voting choice.  (I'll be voting, again, for Mitch Daniels, who would -- were it not for that narcissistic dunderhead Jon Huntsman -- be wrapping up an outstanding 8-year run as President.  Sigh.) 

I will note (I cannot help it) that, having followed Mr. Biden's career for many years, and recalling well -- among other things -- his craven position-changes, his plagiarism habits, and the serious damage he has done to the judicial-confirmation process, I see no evidence to support Carr's view that Biden "has the character, integrity and competence to serve" (unless, perhaps, he is judged against the pretty low standard of his opponent's "character, integrity, and competence").

Four quick things, though, regarding Carr's essay:  First, Carr appears to endorse the suggestion in Faithful Citizenship that there is at least a prima facie moral obligation to vote, in a presidential election, for one of the candidates on the ballot.  (Faithful Citizenship calls not voting an "extraordinary step.")  But, this suggestion is misplaced; indeed, with all due respect to the bishops, it seems clearly incorrect.  There is no obligation to vote, or even a presumption that one ought to, in any particular election.  Engagement in the life of the political community, and prudent efforts to cooperate with others for the common good, may and does take many forms.  See, e.g., my "Neither of the Above", from four years ago.

Second, Carr appears to endorse the (common) frame, or narrative, that, when it comes to issues that faithful and engaged Catholics should care about, it's only with respect to abortion that the Democrats currently fall short.  We should all be clear-eyed:  A Biden-Harris administration (that is, an administration staffed by the people whom that administration will appoint) will produce very bad policy on religious freedom, educational choice, higher-education regulation, a range of "cultural"/"moral" questions, etc.  Again, the point here is not to challenge Carr's bottom line.  But the "Catholics are not single-issue voters" observation is too often invoked in a way that neglects the fact (and it is a fact) that more than one Republican position (or, at least, the positions of "normal" Republicans) is better, from a Catholic point of view, than the Democratic one.

Third, Carr states that "we vote for candidates, not issues."  I agree, to be sure, that the character of our political leaders matters.  (This is one of the many reasons why Sen. Dole seemed so obviously preferable, to me, to Pres. Clinton in 1996.)  But, in terms of the bottom line, Carr is wrong.  We do not have a king.  In fact, we vote -- or, at least we should -- for administrations, appointees, congressional majorities, committee chairs, agendas, and policy outputs, not (simply) "candidates."

Finally, with respect to judges.  For me, and I suspect for others, among the most welcome outputs of the Trump administration has been the nomination and confirmation to the federal bench of judicial conservatives.  In my view, Catholics have good "Catholic" reasons for wanting judges who at least aspire to avoid legislating or policy-making and who, instead, confine themselves to (as best they can) interpreting and applying the laws and regulations that are enacted and promulgated by others.  Carr complains that these judges -- even if they vote to uphold abortion regulations -- "vote against voting rights, immigrant rights, workers’ rights, affirmative action and environmental justice" but, as I see it, this complaint is misplaced.  Even if Carr were right (and, about some, he might be) about the best policy answers in these areas, it is not the place of judges to vote "for" these various matters as such, but instead to interpret and apply the relevant positive law, which may, or may not, have the content Carr likes.

All that said, and again:  Our public life would be better if we had more John Carrs.

September 17, 2020 in Garnett, Rick | Permalink

Monday, September 7, 2020

Joel Harrison on "Post-Liberal Religious Liberty"

Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity.  (Get yours here.)  I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing.  I asked him to supply MOJ with an "extended blurb", to give readers a sense of the argument.  Here it is:

Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)

Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.

This argument challenges the increasingly popular liberal egalitarian account of religious liberty.  According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity.  Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.

Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority.  Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.

In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank.  Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community.  Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.

(Available here, discount code: PLRL2020; or via Cambridge Core online)

September 7, 2020 in Garnett, Rick | Permalink | Comments (0)

Saturday, September 5, 2020

Faithful Citizenship, "Equally Sacred", the 2020 election, etc.

I was struck, the other day, by the realization that the upcoming presidential election in the United States is the fifth one since the launch of this blog, back in 2004.  Skimming through old posts, I was reminded that the "for whom should Catholics vote?" and "what considerations should guide Catholics' electoral decisions?" and "what are 'prudential' considerations, anyway?" questions were consistently, sometimes energetically, engaged.

This has not been the case this year, and not only because these conversations and arguments migrated to Twitter.  And, I'll confess to not missing them very much. Very little seems to change (although, in 2016 and 2020, unlike -- in my view -- 2004, 2008, and 2012, candidates' manifest and deep character defects might add new ingredients to the mix).

There was some controversy, a few days ago, about former V.P. Biden having been referred to as a "fake Catholic." No, he's baptized, and the sacrament, we believe, works. (Questions about scandal, excommunication, etc., are different.) And, there was a published account that, on the contrary, his "Catholic roots have shaped his public life." Interestingly, that account stated that "[Biden's] is . . . a faith that has come into conflict with Democratic policy positions, forcing him to change and evolve along the way to keep up with shifting uniform stances within the party."  "Forcing him"?

Pushing back on the "fake Catholic" charge, John Gehring conceded (phew!) that it is "legitimate for Church leaders and others to challenge Biden on his positions, including his support for abortion rights," if it's done with "civility." (Gehring claims that this requirement rules out "distorting Biden's position as “pro-infanticide”, but one suspects that the entirely accurate statement that "Biden believes that American positive law should protect abortion on demand, for any reason, at any time, at public expense" wouldn't make him much happier.)

There's been an interesting contest about how to read the USCCB's "Faithful Citizenship" document , and about that document's explicit emphasis on the immorality and injustice of our abortion regime, and about the significance of Pope Francis's statement in Gaudete et exsultate that "equally sacred [to the lives of the "innocent unborn"] are the lives of the poor, those already born, the destitute, the abandoned and the underprivileged, the vulnerable infirm and elderly exposed to covert euthanasia, the victims of human trafficking, new forms of slavery, and every form of rejection.” Of course, the Holy Father's statement is precisely the heart of the pro-life, anti-abortion position:  All human persons, because they are human persons, are radically equal in dignity.  It is precisely because of this "equal[] sacred[ness]" that abortion -- and its legal protection -- is gravely unjust. Nothing about Pope Francis's statement could plausibly be understood as in tension with the bishops' observation that, given the American legal givens, the need to remedy our unjust abortion regime remains "preeminent", and efforts to suggest otherwise seem opportunistic and misplaced.  Similarly, efforts to suggest that the regular and longstanding emphasis on "prudence" in the Catholic approach to politics calls into question the immorality of the American abortion-regulation regime are sophistical.

The launch of a "Catholics for Biden" looks to make the case (in Michael O'Loughlin's words) to Catholic voters that, all things considered, the policy-outputs of a Biden-Harris administration would be better, in terms of Catholics' "shared values", than those of another Trump-Pence administration.  There's the rub (once again), I guess. Even assuming "shared values" among American Catholics, it is not at all clear that we share a "metric" for identifying better or worse policy outputs. The "Catholics for Biden" effort, for example, probably does not weigh too heavily the clear and negative effects a Biden-Harris administration would be for Catholic schools and school choice. The "Catholics for Trump" analogue (I haven't checked) probably does not put into the balance, say, the downsides of deregulation.  And so it goes.

St. Thomas More, patron of statespersons and politicians, pray for us!


September 5, 2020 in Garnett, Rick | Permalink | Comments (0)