Thursday, June 28, 2018
Although much of the commentary about yesterday’s decision in Janus v. AFSCME couldn’t resist jumping right to politically partisan conservative/liberal descriptions of the case, it seems to me lawyers and law profs should spend a little time on the free speech doctrinal aspects of Janus. So here’s one rough take: Janus is a great vehicle for understanding the differences between formalism and functionalism (along the lines, say, of this piece by Bill Eskridge) in First Amendment law, or, stated otherwise, Justice Alito’s opinion overruling Abood v. Detroit Board of Education marks the ongoing demise of the disco era in free speech jurisprudence.
Reading the characterizations of Abood in the majority opinion by Justice Alito and the dissent by Justice Kagan, I was struck by how much Abood was a creature of the 1970s Supreme Court. There’s scarcely a doctrinal test or free speech category to be found in Justice Stewart’s opinion, but there is a lot of gesturing toward fairness (“free rider” problems), legislative judgments in the labor area, policy considerations (the concern with “labor peace”), and splitting the difference (in Abood, by separating out agency fees for chargeable collective bargaining expenses and fees that go to political activities). In those respects, Abood is broadly of a piece with other free speech cases from the era such as Buckley v. Valeo, Wooley v. Maynard, Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, and the series of obscenity cases coming out of Miller v. California.
Following Eskridge’s description of functionalism, these cases employed standards rather than rules, favored multi-factor balancing tests (when a test is formulated at all), often discussed various policy “interests” that were in play as part of a process of induction from those interests to a holding, and sometimes invoked ad hoc principles that resisted wider application (such as the “secondary effects” doctrine of Renton v. Playtime Theatres, which is at the outer edge of the era in 1986). Even the case that has come to be seen as the beginning of the distinction between content-based and content-neutral regulation of speech, Chicago v. Mosley from 1972, is a gauzy discussion of free speech and the Equal Protection Clause. (There is probably a similar story about the Free Exercise Clause cases of that period, most especially Wisconsin v. Yoder.)
But just like Josh Neff in Whit Stillman’s The Last Days of Disco tries too hard in one of the final scenes of the movie to hold on to the era (“Disco was too great, and too much fun, to be gone forever! It's got to come back someday. I just hope it will be in our own lifetimes.”), free speech law has left behind the functionalism of the 1970s and 80s and moved in a decidedly more formalist direction. Cases now come in sharply delineated categories, the application of strict scrutiny to all content-based regulation of speech does a lot of work across a wide range of cases (as seen this week in NIFLA v. Becerra), and opinions often begin with a principle (in Janus, no compelled subsidization of speech) and reason deductively to the holding (Abood got around to a brief discussion of the "impact upon [employees'] First Amendment interests" after several pages of discussion about agency shop arrangements and labor policy). It's hard to know when the disco era started coming to an end, but Justice Scalia's opinion in RAV v. St. Paul in 1992 is a good marker.
This is all very general, of course, with a lot of details to be filled in. But in the opinions by Justices Alito and Kagan, I think we can see the difference between the functionalism of the free speech disco era and the formalism of today. For what it’s worth, my own views are strongly in the direction of formalism, and I think Justice Alito’s opinion is thoroughly correct—a topic for another day.
Tuesday, April 3, 2018
Building on Villanova's astonishing basketball success and national championship victory, the McCullen Center for Law, Religion, and Public Policy at Villanova will be hosting two events over the next few weeks of interest to MOJ readers in the Philadelphia area (both events are free and open to the public):
Then on Tuesday, April 24 at 3:00pm, Anthony Kronman, Sterling Professor of Law and former Dean at Yale Law School, will deliver the annual Giannella Lecture on "Nicholas of Cusa: Prophet of Modernity." Details here.
Monday, February 26, 2018
The Supreme Court hears oral argument this morning in one of this term's major First Amendment cases, Janus v. AFSCME. Some of the questions posed about the case and especially the issues raised in this brief by the USCCB have been thoughtfully explored in a series of posts by Ed Whelan (e.g., here) and Michael Sean Winters (e.g., here).
I wrote about Catholic social teaching and public sector unions back in 2016 when the Supreme Court heard oral argument in Friedrichs v. California Teachers Association and am reposting that below. Suffice to say that nothing in the USCCB brief or in the commentary about it causes me to change my views. It's worth emphasizing that Janus is about a narrow if important bit of constitutional doctrine concerning compelled subsidies and speech in the public employment sector. The USCCB brief and commentary supporting it mistakenly, in my view, kick up a host of misleading (because usually failing to note the important distinction between the public and private sectors) and irrelevant (because not engaging the legal questions and the reasoning--or lack thereof--in Abood) issues about right to work laws, civil society, intermediate institutions, Bowling Alone, and so forth. More to come after oral argument.
I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?
One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.
For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.
And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:
The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.
Wednesday, May 17, 2017
As Rick noted, I'll be part of an event in Chicago tomorrow sponsored by the Lumen Christi Institute with Adrian Vermeule and Jeff Pojanowski on Richard Helmholz's book Natural Law in Court: A History of Legal Theory in Practice. Details here. I noted a couple years ago a review by John Goldberg of the book when it was published, and the event should be an interesting exploration of the themes in the book as well as a celebration of the remarkable career of Dick Helmholz.
Wednesday, March 15, 2017
Nice news out of Villanova (press release here), where the Widger School of Law has named its Center for Law, Religion and Public Policy after Eleanor H. McCullen in recognition of $5 million in gifts from her husband, Joseph T. McCullen, Jr. Among her many remarkable achievements, Mrs. McCullen was the plaintiff in McCullen v. Coakley, the 2014 case in which the Supreme Court unanimously struck down a Massachusetts abortion clinic buffer zone statute. The naming of the Center in her honor is a wonderful tribute to a pro-life and free speech champion.
Wednesday, February 1, 2017
I am delighted by the President's nomination last evening of Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch and I overlapped in our service in the Bush Administration, and we have kept in occasional touch since he left DC to go on the Tenth Circuit in 2006. I've used his superb book, The Future of Assisted Suicide and Euthanasia (Princeton UP, 2006), several times when teaching seminars on bioethics issues (the book's origins are in a doctoral dissertation at Oxford under the mighty John Finnis). Among the book's many virtues (especially for teaching with it) are the ways in which Judge Gorsuch so fairly and honestly lays out the arguments on all sides of the issues he explores.
For now, I wanted also to mention an essay Judge Gorsuch contributed to a Festschrift for John Finnis. The essay takes up the important question of intention in criminal law and torts, and it is a powerful argument against utilitarian bases for liability (Gorsuch uses Richard Posner's discussion of spring gun cases such as Bird v. Holbrook and Glanville Williams's work on criminal law). A bit here:
[T]here are still other normative justifications for the special emphasis the law places on intentional conduct. One has to do with human equality. When someone intends to harm another person, Finnis encourages us to remember, “[t]he reality and fulfillment of those others is radically subjected to one’s own reality and fulfilment, or to the reality and fulfilment of some other group of persons. In intending harm, one precisely makes their loss one’s gain, or the gain of some others; one to that extent uses them up, treats them as material, as a resource.” People, no less than material, become means to another’s end. To analyze Bird v. Holbrook as the challengers to extant law would have us, we ask merely whether superior collective social consequences are produced by ruling for the plaintiff or defendant. On this account, there is nothing particularly special about the individual. Like any other input or good, it gives way whenever some competing and ostensibly more important collective social good is at stake. But it is exactly to prevent all this that the law has traditionally held, in both crime and tort, that one generally ought not choose or intend to harm another person, and that failing to observe this rule is a particularly grave wrong. This traditional rule “expresses and preserves each individual person’s…dignity…as an equal.” It recognizes that “to choose harm is the paradigmatic wrong; the exemplary instance of denial of right.” It stands as a bulwark against those who would allow the human individual to become nothing more than another commodity to be used up in aid of another’s (or others’) ends.
Neil M. Gorsuch, Intention and the Allocation of Risk, in Reason, Morality, and Law 413, 420 (John Keown and Robert P. George, eds., 2013) (citations omitted).
Friday, December 9, 2016
The Importance of Constitutional Norms, or “Why the Vice President’s Party Can’t Do Whatever It Wants in the Senate”
David Waldman at Daily Kos has advanced a proposal getting a good deal of attention on social media to have the Senate confirm Judge Merrick Garland to the Supreme Court on January 3rd at noon. The basic idea is to have Vice President Biden use his authority as presiding officer to recognize the Democratic leader (Senator Durbin, as Senator Reid’s and Senator Schumer’s terms will have expired) while there are only 66 senators (32 Democrats, 2 Democratic-caucusing independents, and 32 Republicans) and jam through Judge Garland’s confirmation (his having been renominated by President Obama that very moment) before the newly elected 34 senators have been sworn in (and bring with them a 52-48 Republican majority, assuming Republican John Kennedy wins the runoff in Louisiana).
Sean Davis argues in devastating detail why this would, among other things, flaunt the 20th Amendment (providing that Senate terms end and begin at noon on January 3rd) and a host of Senate Rules and practices, including Rule II.1 (providing that “the presentation of the credentials of Senators elect…shall always be in order” and take precedence over a motion to confirm a nomination) and Rule XXXI (providing that a nomination may not be acted upon the same day it is received). Waldman’s argument appears to rely on the view that the Senate is not a continuing body and that a majority (for a few minutes after noon on January 3rd anyway) can ignore or amend the Standing Rules of the Senate at will.
To Davis’s arguments and as a devotee of congressional procedure (everyone needs a hobby), I would add another based on a reductio. The Vice President is constitutionally the President of the Senate, and the presiding officer has the power of recognizing senators. But Rule XIX on recognition of senators by the presiding officer is just another rule. As long as Senate rules are amendable and disregardable from the chair, why couldn’t Waldman’s scheme be executed simply by having the Vice President recognize a Democratic senator (anytime, not just on January 3rd) for a unanimous consent request to confirm Judge Garland and ignore objections from Republicans? Or bring up the motion to confirm Judge Garland on a voice vote, assert that the ayes have it, ignore the request for a roll call vote, and table the motion to reconsider?
And then there are other problems, to put it mildly. For example, the President signs a commission for a judge upon notification from the Secretary of the Senate that the Senate has consented to a nomination. The Secretary of the Senate is a continuing office, presently held by a Republican appointee. If after all of this manipulation of the rules the Secretary objects and refuses (quite reasonably) to carry out the ministerial duty of transmitting to the President notification that the nomination has been confirmed, then what? Can the President sign a commission without notification from the Secretary that the Senate has consented to the nomination? (As an aside, there are also significant problems with a recess appointment to the Supreme Court in January, for the reasons spelled out in NLRB v. Noel Canning (2014) and because after January 20th Congress could enact a joint resolution ending its session, adjourn sine die, and reconvene for a new session, thereby causing the recess appointment to expire.)
This is all absurd, of course. But the larger point to make here is that the norms governing our institutions are partly a product of mores and practices (such as respect for established parliamentary procedure) reflecting underlying judgments about political and legal authority. I’m inclined to think these constitutional norms are still legal norms for reasons Jeremy Waldron has argued (Are Constitutional Norms Legal Norms?, 75 Fordham L. Rev. 1697 (2006)). We might all wish that those mores and practices--including the Senate’s consideration and confirmation of federal judges--were in better repair. But we would do well, I suggest, as lawyers and law professors amid these divisive times to foster the constitutional norms that have served us well, however imperfectly and however much we want "our" side to win. "And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?"
Wednesday, December 7, 2016
Reposting from 2011:
Thomas More is, to my knowledge, the only common lawyer ever canonized by the Catholic Church, but a number of civil and canon lawyers have been. Today is the Feast of Saint Ambrose, one of the four great doctors of the early Church (along with Augustine, Jerome, and Gregory the Great), who was trained in the law and an imperial governor under Valentinian before he was elected bishop of Milan by acclamation in 374 (Ambrose was a catechist at the time, so he was baptized and ordained bishop in the course of just a few days). In addition to his important contributions to Christian theology (particularly the refutation of Arianism) and music, he was also instrumental in the conversion of Augustine, who wrote that Ambrose "was one of those who speak the truth, and speak it well, judiciously, pointedly, and with beauty and power of expression" (On Christian Doctrine, IV.21).
Tuesday, November 22, 2016
That's the title of a book chapter I contributed to the recently published collection Public Theology and the Global Common Good (a Festschrift for my doctoral dissertation advisor, David Hollenbach, SJ). Based on Murray's writings in the 1940s and 1950s about the Supreme Court's early Establishment Clause cases, I argue that Murray was more pessimistic about the future of American public philosophy and constitutional law than he is usually regarded, and I draw out some lessons for the mission of legal education today. Critics of Murray (both traditionalist and radical) and readers only of We Hold These Truths (1960) are apt to miss this aspect of Murray. Here is a bit from my chapter (citations and footnotes omitted):
In Murray’s engagement with American constitutional law, an overlooked aspect of his thought was his focus on the particularities of the church-state question as it had played out historically in the United States. He did not so much develop a theory of church and state as use sources in the Catholic tradition to discern historical possibilities for how church and state could relate in ways that the tradition (shaped as it was primarily by continental, not Anglo-American, source) had neglected. This is evident both in Murray’s treatment of church and state in the teaching of Pope Leo XIII and in his discussions of the First Amendment.
A prominent example of this aspect of Murray’s thought is his engagement throughout the 1940s and early 1950s in a wide-ranging critique of the Supreme Court’s Establishment Clause jurisprudence as it emerged in early cases applying the First Amendment to state and local governments. Two cases from that period especially interested Murray. In Everson v. Board of Education, the Supreme Court took up the question of whether a New Jersey program of reimbursing the parents of schoolchildren traveling to and from school (including parochial schools) for transportation expenses was constitutionally permissible. While the Court concluded that the transportation reimbursement program did not violate the First Amendment, Justice Black’s majority opinion famously invoked the “wall of separation” metaphor that has bewitched Establishment Clause jurisprudence ever since. Justice Black’s opinion purported to rest on the original understanding of the First Amendment, but—in both Murray’s articles on Everson and in subsequent legal scholarship—that account has been called into serious question.
In McCollum v. Board of Education, decided shortly after Everson, Murray’s concerns were vindicated. In another majority opinion from Justice Black, the Court used the Establishment Clause doctrine adopted in Everson to hold that a release-time program for pubic school students to attend religious instruction was unconstitutional. In a talk delivered in Wilmington, Delaware shortly after McCollum was decided (discovered in the Murray archives by Joseph Komonchak and published in First Things in 1992), Murray excoriates the reasoning of McCollum: “Our original constitutional doctrine simply affirmed the equality of all religious faiths before the law of the land; our new constitutional doctrine affirms something much more radical and sweeping—it affirms the so-called principle of the ‘absolute separation of church and state.’”
Recently, Andrew Koppelman has invoked Murray’s view as an example of concerns about corruption of religion in First Amendment cases. “A rule against establishment of religion ought not itself to establish a religion,” Koppelman writes, “The point is a powerful one, and it is remarkable that so little has been made of it since Murray wrote.” For Murray, the Supreme Court’s Establishment Clause decisions in Everson and McCollum are “an irredeemable piece of sectarian dogmatism. And if there is one thing that the First Amendment forbids with resounding force it is the intrusion of a sectarian philosophy of religion into the fundamental law of the land.” As an alternative to this misguided interpretation of the Establishment Clause, Murray argued in his essay “Law or Prepossessions?” for “first, a return to the original political philosophy of the First Amendment” and “second, its realistic application in a situation wherein the alignment of forces and the conflict of values is substantially different from what it was in 1791.” Absent these developments, Murray warned that the consequences would be severe:
Join a rigidly negative concept of religious freedom, as sheer immunity from coercion by governmental power, to a rigidly absolute, end-in-itself concept of separation of church and state, as meaning absolutely no aid to religion by government, and you have opened the way to the subtle tyrannies of irreligion, secularist ideologies, false political and education philosophies, and the dangerous myth of “democracy as a religion.” Such a development is utterly foreign to the letter, spirit, and intent of the First Amendment, and will be consequently disastrous to American society.
Thursday, November 17, 2016
I am looking forward to being on a panel at the National Constitution Center in Philadelphia this Monday (Nov. 21) at noon on the question, "Is the Constitution Judeo-Christian?" (details and registration here) moderated by Michael Gerhardt (UNC-Chapel Hill) and joined by Menachem Lorberbaum (Penn and Tel Aviv) and Suzanne Last Stone (Cardozo). My answers to the question will be "yes, of course," "perhaps, but in a complicated way," and "no."