Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, February 9, 2019

MOJ at 15: The end of the beginning?

Several weeks ago, I began drafting a 15-year anniversary post that I never brought myself to finish. It was fairly negative in outlook, and I found ways to avoid attempting either to make the necessary arguments or to abandon them. Here's what I wrote:

We are fast approaching the fifteenth anniversary of the first post at Mirror of Justice.

It feels very different from the tenth anniversary. Then, there were many anniversary-reflection posts from MOJers old and new. These reflections varied in orientation but were largely hopeful.

Now, I expect there will be fewer. And the hope they have to offer will probably not be for the future of this particular group blog. 

* * *

Is it time for Mirror of Justice to give up the ghost?

I ask explicitly and publicly in order to provoke honest answers from our contributors. 

My answer is yes, for reasons that I aim to elaborate over my next few posts. But perhaps I am wrong.

Not completely inaccurate predictively, I suppose. There have been fewer anniversary posts at 15 than at 10, and they express appropriate uncertainty about the future. But while the posts have been less than confident about the best path forward for this particular blog, they have been more hopeful than I expected about the worth of continuing the undertaking.

I am particularly grateful for the anniversary posts by Greg Sisk and Susan Stabile. Greg writes, "As long as the blogosphere continues, something like the Mirror of Justice is needed. I pray for another fruitful 15 years." Susan "remain[s] convinced of the importance of the enterprise in which we have been engaged for the last fifteen years.

Howard Wasserman's gracious post at PrawfsBlawg was also most welcome."MoJ serves a particular and special message that is not easily replaced," he writes, "and so should continue."

These observations make me think I might have been wrong in my earlier private musings about the practical wisdom of ending this collective project any time soon.

Instead of speculating about the end of MOJ, then, I'll conclude this anniversary-week post with a few thoughts on the blog's beginning.

(1) From today's perspective, the inaugural MOJ post radiates an anticipatory defensiveness of a sort that now seems quaint: "The members of this blog group represent a broad spectrum of Catholic opinion." How nice.

(2) The group members all believe that "faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation." Too bad that needed to be said; perhaps we can better realize now how fragile were the foundations of the consensus position we were challenging even while we were accepting it as obviously legitimate in some way.

(3) "We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking." Probably not as true now, which is all to the good.

February 9, 2019 in Walsh, Kevin | Permalink

Friday, February 8, 2019

Alabama execution without requested imam

Story here.  It's not as obvious to me as it seems to be to some in the Twitter-verse that the Court's 5-4 split on the stay shows hypocrisy regarding religious freedom (because there are questions about procedure, timing, etc., and a general policy regulating who can be present in the execution chamber is reasonable) but, given what I know at the moment, it seems to me that the Court should have left the stay in place (and that Alabama and other death-penalty states should anticipate the need for chaplains of multiple faiths). 

February 8, 2019 in Garnett, Rick | Permalink

Thursday, February 7, 2019

What We Can See in Law (and a Conditional Valediction)

I began teaching law about 10 years ago, at a time when blogging was relatively new, but already old enough to seem only a partially, rather than a totally, suspect and outré activity. For new law professors, blogging represented a way--comparatively low-cost and easy--to begin to make connections and meet other people. Before blogging, I had always considered myself a (proud) luddite but unlike some of my junior colleagues, I made use of blogging fairly liberally in those days for networking. Dan Markel invited me to guest blog over at Prawfsblawg, and as far as I can reconstruct it, my first blog was this one "against novelty" in May 2009. 

After a few repeat stints at Prawfs, Rick asked me over to Mirror of Justice in the fall of 2010, where my first post was about my review of what was then a new book by MOJ denizen, Steve Shiffrin. At that time, a lot of my scholarly focus was in criminal law, and I was especially interested in the idea that there was something distinctive about criminal law that differentiated it from other disciplines. This old post from back in those days--on the smoldering core of criminal law--was in that vein.

One nice thing about retrospective moments like this is that they allow one to think about themes that bind together one's work in a very general way. That post and several others from the earlier days reflect a much broader issue that has interested me over the years: namely, what multifarious sets of values and principles we can glean about the law from the way in which it actually exists and is practiced in our world. From the bottom up, as it were. In criminal law, law and religion, free speech, constitutional adjudication, and (now) constitutional interpretation (in a new article on the Supreme Court's use of tradition to inform constitutional meaning...more soon), I often find myself drawn to the theme of taking the practices immanent in law as reflecting a set of views, or even a mood about, or perhaps a general orientation toward, the legal and political world that is worth investigating and studying. To see what we can squeeze out of what it is now, rather than of what it might or ought to be. At Mirror of Justice, I've sometimes tried to think about how those practical realities about law, as I perceive them, inform and are informed by Catholic ideas. 

But enough of this tedious navel-gazing. Mostly what I want to say now is that Mirror of Justice has been a place of true scholarly community for me. I have met some of my closest friends in the legal academy through this blog. It has been a source of fellowship and friendship for me over the years. If it has run its course, I will miss it. Ave atque vale!

February 7, 2019 in DeGirolami, Marc | Permalink

Tuesday, February 5, 2019

Mirror of Justice -- 15th Anniversay: The More Things Change, the More They Remain the Same

“The more things change the more they remain the same.” This familiar aphorism is a translation from a sarcastic epigram by French writer Jean-Baptiste Alphonse Karr, dating back more than 150 years. Alphonse_Karr_Nadar

When I look back to my earliest posts, the second one being "The Shameful Role of Lawyers in the Church Sex Abuse Scandal" (which I've reposted below the fold), the world-weary dimension of the saying is poweful. I think it was Richard John Neuhaus who referred to the Catholic Church sex abuse scandals as the "original sin" of the American Catholic Church, something for which we must regularly renew our baptismal pledge and seek forgiveness. Re-reading that early post reminded me again of how important it will be as I teach Professional Responsibility this semester to remind future lawyers that they need to encourage their clients to be authentic and consider their deepest values in a legal representation.

And yet I think my early post on that still unfolding and draining subject also reflects the mission of the Mirror of Justice.  I've written (sometimes in multiple post bursts and sometimes irregularity after months of quiescence) on a wide range of topics, from personal stories of faith to general cultural trends to politics. But I agree with Rick Garnett that the most important of our contributions have been at the intersection of Catholic teaching and the law, whether the role of judges and lawyers, the importance of scholarly writing in a Catholic law school, the faith mission of the Catholic law school, etc.

As we celebrate our 15th anniversary, I encourage many of us to select from our favorite posts in the past for re-posting along with an update as appropriate. The richness of those 15,300 posts should not be lost in the past.

The future of blogging is like the future of many things in this life -- uncertain.  I do think it remains an important venture, much more important than my neglect in blogging might indicate. As long as the blogosphere continues, something like the Mirror of Justice is needed. I pray for another fruitful 15 years.

Continue reading

February 5, 2019 | Permalink

Fifteen Years of Mirror of Justice

When Rick Garnett reminded us all that this is the fifteenth anniversary of Mirror of Justice, I went back and looked at the post I wrote on our tenth anniversary.  

I referenced in that post Pope Francis' then-recent Apostolic Exhortation, Evangelii Gaudium, in which he spoke of solidarity as presuming "the creation of a new mindset which thinks in terms of community and the priority of the life of all over the appropriation of goods by a few.” I wrote of Francis' belief that  because Christian conversion “demands reviewing especially those areas and aspects of life related to the social order and the pursuit of the common good,…no one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions, without a right to offer an opinion on events affecting society.”

In the last fifteen years, those involved in the MOJ project have disagreed with each other about all sorts of questions  -  whether particular laws and policy positions are consistent with principles of Catholic Social Thought, whether a good Catholic can vote for a particular candidate, and so on.  Those disagreements will inevitably continue - and they foster healthy dialogue.  (And I think one of the contributions to this enterprise is precisely to model that we can have disagreements - sometimes heated ones - while still maintaining respect and fraternal love for each other.)

Whatever differences there have been, there is no disputing that everyone involved in Mirror of Justice proceeds from the premise that we have a duty to help to create “a new mindset which thinks in terms of community and the priority of life of all” and that  we cannot make decisions about law and public policy divorced from the teachings of our faith.   

To call me an infrequent MOJ blogger of late would be generous; this is my first post in a very long time.  Notwithstanding that, I remain convinced of the importance of the enterprise in which we have been engaged for the last fifteen years.

I don't have an answer to Rick's question about the future of blogs in general.  But if not here, there needs to be some forum for the exchange of ideas we have had on Mirror of Justice.



February 5, 2019 in Stabile, Susan | Permalink

15 Years at Mirror of Justice

This week marks the 15th anniversary of the Mirror of Justice blog.  Tempus fugit, and all that.  I dug up my first substantive post, and I suppose I should not have been surprised that it was, like a lot of the things I've put up on this blog, about Christian "moral anthropology" and its implications for law and the legal enterprise:

One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). 

We've covered a lot of ground these past 15 years - and not just, although it sometimes might have seemed like it, four presidential elections.  We've had about 15,300 posts and (I estimate) about 5 million page-views.  Bloggers have come and gone -- although more than a few of us have been on board the whole time -- and engagement and activity have waxed and waned with current events, the life of the Church, and the academic calendar.  We've talked about current events and politics, sure, but at our best the blog was not another "blog about current events and politics (by people who happen to be Catholic law professors)."  We've argued some, and thrown some elbows, but I like to hope that, all things considered, we've shed some light and not just "thrown some shade."

I continue to think it is the case -- it just has to be -- that the Christian proposal and story have something to say about law -- again, about the purpose and nature of law and the legal enterprise, not just the substantive content of particular enactments.  There needs to be, I think -- and we should want there to be -- a meaningfully, interestingly "Catholic legal theory."  Such a theory is -- or, at least, should be -- of interest and value to Catholics and non-Catholics alike.  That we are Catholic should make a difference for how we teach, practice, study, understand, and craft law.

The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years.  Twitter wasn't around.  Facebook, believe it or not, was launched on the same day as Mirror of Justice.  (Arguably, we've done better at our mission than they have at theirs!)  Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything.  A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.

It's not clear to me what the future holds for this blog-venture, or for blogging generally.  I'd welcome others' thoughts!  In the meantime, I want to say "thank you" to the many thousands of people who have checked in with MOJ over the years and to my co-blogging colleagues and friends.  Let's all pray for the Church, for our vocation, and for each other.  

February 5, 2019 in Garnett, Rick | Permalink

Monday, January 28, 2019

Herbert McCabe on Thomas Aquinas and Sanctity of Mind

For this Feast of St. Thomas Aquinas, I am reposting a bit from a homily delivered for this occasion at Blackfriars (Oxford) by my late friend Fr. Herbert McCabe, O.P.:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?


“What is God?” It was the intellectual sanctity of Thomas that he here accepted defeat. Unlike so many  theologians before and since, he could in no way answer this most important of questions. Right through his life he accepted this crucifixion of the mind; his whole life was devoted to talking about God, to theology, and yet he was intensely conscious that he knew nothing, that God is the ultimate mystery, that we are peering into the dark. In Christ, he says, we are joined to God as to the utterly unknown. The most we can do is peer in the right direction; and all theology is about doing that. But we can never answer our basic question with any use of language, by any thought. We will understand what is God only when we have been taken even beyond language and thinking, and God brings us to share in his own self-understanding. Thomas was not making a new discovery when, at the end of his life, he said that all his writings seemed like straw. He had lived with this knowledge all the time he was writing.

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

God Matters (1987), pp. 236-37.

January 28, 2019 in Moreland, Michael | Permalink

Happy Feast of St. Thomas Aquinas

Here's a short video from Fr./Bishop Robert Barron on the Angelic Doctor, and if you haven't read Chesterton's Dumb Ox or Joseph Pieper's Guide, why not fix that?

January 28, 2019 in Garnett, Rick | Permalink

Tuesday, January 22, 2019

The new attacks on school choice (in Indiana and, soon, elsewhere)

As I suggested a few days ago -- it seems like forever, since it was before this weekend's Twitter-mob-unpleasantness regarding Catholic high school students from Kentucky at the March for Life -- the attacks on the school (and on schools like it) where Mrs. Pence teaches should be seen as part of a well-funded and coordinated effort to (a) pre-emptively back-foot judicial nominees and (b) weaken school-choice programs.  A news story here in Indiana provides some confirmation for point (b).  Some lawmakers (who oppose Indiana's pathbreaking school-choice program) have seized on a recent discrimination lawsuit in which a teacher at a Catholic high school was fired after it became known that she had legally married her longtime partner of the same sex.  As the story notes:

The school and Archdiocese have said in public statements that employees must support the teachings of the Catholic Church, including marriage being “between a man and a woman,” and that the expectation is clearly defined in employee contracts.

Some lawmakers have announced their plan to exclude from participation in the school choice program schools that "discriminate" -- whether or not this discrimination takes the form of enforcing contractual provisions that reflect the schools' understanding of their religious mission.  Such exclusion would (as it is intended to do) dramatically reduce the number of high-performing schools that participate in the choice program.

This ("Confusion About Discrimination"), from 7 (!) years ago, appears to continue to be relevant.  Stay tuned. 

January 22, 2019 in Garnett, Rick | Permalink | Comments (0)

Monday, January 21, 2019

Supreme Court review of Indiana law prohibiting abortion based on race, sex, or diagnosis of disability

In case you missed it in the haze of the New Year celebrations, here's an excellent analysis (by Notre Dame's Carter Snead and Mary O'Callaghan) of the case argued before the Supreme Court on Jan. 2, challenging Indiana's law prohibiting abortions based on a child's "race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of . . . Down syndrome or any other disability." (See 7th Circuit opinion in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Department of Health striking down the law here.)  Snead and O'Callaghan point out that the 7th Circuit's denial of the petition for an en banc rehearing of the case includes a strong dissent by Judge Easterbrook, who argues:  "Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered."
Snead and O'Callaghan argue: 

Judge Easterbrook is correct as a legal matter about the meaning of Casey. More importantly, the ramifications of leaving this narrow question unsettled far outstrip those associated with interpretation of the Medicaid Act. Regardless of our nation’s polarized views on the policy and politics of abortion, it is clear that our Constitution does not include a right to abort children merely because of disfavored characteristics. The Seventh Circuit’s erroneous decision gets this basic legal question wrong, and leaves the most vulnerable populations among us, born and unborn, susceptible to the view that we have a “moral duty” to eradicate them, that we are “better off” without them, and that their value can be calculated in dollars and cents.

January 21, 2019 in Schiltz, Elizabeth | Permalink