Mirror of Justice

"The Rise of the Nones"

I had the distinct pleasure of traveling to St. John's University School of Law a couple of weeks ago to participate in the spring symposium sponsored by the Center for Law & Religion, the St. John's Law Review, and the Journal of Catholic Legal Studies. The topic was the role of the so-called "Nones," that is, those without a religious affiliation, in religious liberty cases and debates.

Together with Michael Heise at Cornell, our empirical study of religious liberty decisions, including decisions by judges without a religious affiliation on Establishment Clause cases, will later be published in the St. John's Law Review (for which an earlier draft is now available on SSRN here.)

For those who could not attend and are interested, the Center at St. John's has now published a podcast with Mark Movsesian, Steve Collis, and I. You can access it below:

https://lawandreligionforum.org/2023/04/04/legal-spirits-048-the-rise-of-the-nones-and-american-law/

Cross-Post From Pioneer Press: When They Talk About Abortion, They’re Talking About Me

Today’s Sunday edition of the St. Paul Pi0neer Press includes a guest editorial I wrote, with a less commonly heard narrative on the subject of abortion:

https://www.twincities.com/2022/05/22/gregory-sisk-when-they-talk-about-abortion-theyre-talking-about-me/

Religious Tests for Public Office

We can all well recall the infamous moment when Senator Dianne Feinstein scolded Amy Coney Barrett, then a nominee for a judgeship on the U.S. Court of Appeals, that "the dogma lives loudly within you."

Many of us took the opportunity to applaud a person's faithful commitment, and, indeed, I still have my own t-shirt that reads: "The Dogma Lives Loudly Within Me."

But we also more soberly recognized this as an expression of anti-Catholic bias and an improper attempt to invoke religiosity as a disqualification for judicial office.

It is just a wrong when it comes from another direction, trying to evaluate whether a person is religious enough for judicial office.

Judge Ketanji Brown Jackson has proven herself to be a person of strong character and patient generosity, illustrating and saying that her faith has been a source of strength for her.

But that apparently was not enough for Senator Lindsey Graham who had the temerity to ask her: "On a scale of 1 to 10, how faithful would you say you are in terms of religion?" (Whether Graham meant the question or instead was posing a negative parallel to the Justice Barrett incident, the question remained way, way out of bounds.)

Judge Jackson answered appropriately in this way: "I am reluctant to talk about my faith in this way... I want to be mindful of the need for the public to have confidence in my ability to separate out my personal views."

I was thinking of the answer of Saint Joan of Arc to a similar hostile question and how apt it would have been here: "If I be not in a state of grace, I pray God place me in it; if I be in it, I pray God keep me so."

Remembering the Most Important Thing

From the first time that my University of St. Thomas offered a special Christmas Eve Mass at the Chapel of St. Thomas Aquinas, my wife, Mindy, and I have faithfully attended — other than last year during the depths of the pandemic. We were blessed to return last evening. Above is a photo I took last night of the wonderful Nativity Scene at the front of the chapel. Having seen hundreds of Nativity Scenes through the years, this is my favorite.

 

Last night, in looking at that depiction of the birth of Jesus, I was reminded of a story that the late Justice Antonin Scalia shared with a group of my faculty at the University of St. Thomas shortly before his death. As Justice Scalia had told this story to many others, including those on this list, I’m sure they could point out minor errors or omissions in my telling. But I’ll do my best and be true to my own recollection. And, as imperfect as it may be, I think it will serve the main point.

 

Justice Scalia was talking with us about how the University of St. Thomas School of Law took its Catholic identity seriously, as integrating the profession of law into the whole person of the faithful lawyer. He said the same had been true of Georgetown University, when he was an undergraduate student there.

 

As he approached graduation from Georgetown, the young Scalia had to pass an oral examination before a panel of professors in the history department. They peppered him with questions about historical events. And, as Scalia recalled it to us, “I was hitting the questions out of the park. I knew I was doing a great job.”

 

Finally, the chair of the department, a senior faculty member and Catholic priest, said, “we have one last question for you, Mr. Scalia. What was the most important event in human history?”

 

Scalia told us his thinking was, “I’ve got this. There is simply no wrong answer to this question. Any answer I give will be fine, as long as I provide a good argument for why the event I choose had a major impact on history.” He then proceeded to discuss the Battle of Waterloo and the dramatic effect that the defeat of Napoleon had on European history.

 

When he was finished, the chair of the department said, “No, Mr. Scalia, that is the wrong answer.”

 

The reverend chair continued: ”The most important event in human history was the birth of our Lord and Savior Jesus Christ in Bethlehem.”

 

And Scalia knew of course that he had been wrong. So wrapped had he been in showing his intellectual prowess on history that he had forgotten the most important thing of all. And, of course, we in the legal profession are particularly likely to mistakenly begin to think that what we are doing and saying about the law is the most important thing. It may well be an important thing. And it may be what God is calling us to do as professionals.  But it is not the most important thing.

 

So my prayer for all of us today on Christmas is that we not only remember but truly feel the love of God in this season that should be joyful. Know that God cared so deeply for us that he sent his only Son to be incarnated into a human body, born of a poor family in a stable of animals and laid in a feeding trough. God bless us all today! Merry Christmas!

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2021 update to the Scholarly Impact Ranking of law faculties (here), I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude today.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

For some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university

Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.

Through our work — through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) — we may have a significant influence on the development of the law and of the legal culture.  As my Dean Rob Vischer has written (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:

By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege — and a grave responsibility.

Scholarly Impact and Catholic Legal Education (Part Two)

Last week, I reported the 2021 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today.  This is the second in the series of three.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By producing excellent and well-written legal research, sharing our legal scholarship with others, and receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler — who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law — wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity —- especially the scholarly mediocrity — of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality * * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities — throughout their academic departments, including within the law schools — scholarship suddenly became a more important focus.

In our Catholic law schools, we are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

Ranking the Scholarly Impact of Law Faculties in 2021

Every three years, I lead a team at the University of St. Thomas to study the scholarly citations of thousands of tenured law professors (involving nearly half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship.  Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools.

With the full study available here, I am pasting the Top 50 below.  Notably, five Catholic law schools appear in or near the Top 25: Georgetown, Fordham, the University of St. Thomas (Minnesota), the University of San Diego, and Notre Dame.

I am delighted that my own school, the University of St. Thomas, has remained inside the Top 25 again (at #23), far above its U.S. News ranking.

Fordham has been a remarkable success story on scholarly impact over the past decade, having debuted in our 2021 ranking at #43 and moving subsequently through #35 and #29 to arrive in the Top 25 at #23 for 2021.  While not suggesting it is anything miraculous, they do seem to be changing the water into scholarly wine at Fordham Law.

The University of San Diego continues to rank considerably higher for its faculty’s scholarly impact than the questionable U.S. News ranking. For 2021, The University of San Diego places #30 in the Scholarly Impact ranking, but is remarkably under appreciated when U.S. News drops it to #86.

Over the next few days, as I do every three years, I will follow-up with a three-part series on the importance of scholarly activity and scholarly impact for Catholic legal education.

Table 1:  Summary of Scholarly Impact Ranking of Law Faculties, 2021

Rank	Law School	Weighted Score
1	Yale	1345
2	Chicago	1110
3	Harvard	940
4	NYU	921
5	Columbia	814
6	Stanford	752
6	Cal-Berkeley	749
8	Pennsylvania	663
9	Virginia	646
9	Vanderbilt	644
11	UCLA	605
12	Duke	597
13	Michigan	545
14	Cal-Irvine	537
15	Northwestern	528
15	Cornell	527
17	Georgetown	514
18	George Washington	472
18	Texas	471
18	Minnesota	468
21	Washington U	440
22	Cal-Davis	435
23	George Mason	420
23	Fordham	414
23	Boston U	411
23	U. St. Thomas (MN)	410
27	Arizona	387
27	William & Mary	384
29	USC	382
30	U. San Diego	367
31	Notre Dame	346
31	Illinois	344
33	Cardozo	340
33	Brooklyn	338
33	Colorado	336
36	Case Western	325
36	Utah	326
36	North Carolina	323
36	Emory	317
40	Kansas	311
40	Hastings	305
40	Chicago-Kent	304
43	Ohio State	300
43	Alabama	293
43	Georgia	289
46	American	287
46	Florida State	278
46	Maryland	278
49	Temple	275
49	BYU	268
49	Wake Forest	265

Note:  Original post updated to include discussion of the University of San Diego.

Police Reform and Support for Police

Of all the divisions currently plaguing American society, one of the saddest and most self-destructive has been the tendency of too many who rightly demand accountability for police misconduct to then travel down the negative path toward outright hostility to the police.  That hostility tends to be expressed along with foolish proposals to undermine law enforcement in its essential duties.

I have been a visible and active advocate for police reform:

In my scholarly work, I have highlighted the lack of accountability for public officers for egregious wrongdoing, including sexual violence.

I have been a party to amicus briefs before the Supreme Court emphasizing the vital need for a Bivens claim for federal unconstitutional behavior when no other remedy is available.  That a federal border patrol agent may shoot an unarmed Mexican teenager in the head with no consequences and no remedy is an injustice that besmirches America.  The crucial difference between a republican democracy and tyranny is that we reject arbitrary official killing.

I have successfully represented a client who won damages for excessive use of force by law enforcement officers.

I have testified before the state legislature for the end to qualified immunity and have taken on cases pro bono to challenge application of qualified immunity.

And I just recently lost a case in the U.S. Court of Appeals that well-illustrates everything that is wrong with qualified immunity.  The prison officials involved had violated the state statute and regulation guaranteeing confidentiality for prisoner calls to attorneys; they had deliberately bypassed telephone technology and protocols within the prison that were designed to prevent eavesdropping while simultaneously preventing abuse by call-forwarding; and yet a divided appellate court still granted qualified immunity because, in the court’s view, no prior court had ruled on those precise facts.  When a rogue operation in violation of protocols and state law violates the constitutional rights of another, no qualified immunity excuse should be accepted.  And when qualified immunity cloaks such officials wrongdoing, the result is to encourage officers who push the envelope.  This in turn further undermines public trust.

But one can be strongly supportive of essential police reforms and still recognize that the vast majority of police officers are good men and women serving an essential public safety role in a dangerous climate.  The grave error is to take the righteous demands for justice to the victims of police brutality and new rules to weed out miscreant police officers and translate that into an outright hostility to the police.  We must resist the delusional belief that defunding the police does anything other than embolden criminals and increase violent crime and multiply the number of victims of trauma.  Indeed, one of the causes of police misconduct is that many police departments are severely understaffed, which makes it harder to separate those officers who are unfit and more likely that officers will be over-stressed and fatigued to the point of making poor judgments.  The empirical evidence is solid that better paid and more professional police do a better job and that more police present in the community save lives and deter a surge in violent crime (see here).

So, yes, let’s speak up clearly to denounce official misconduct.  Let’s stand up and demand transparency when police use of force has occurred to ensure that abuses are detected.  Let’s never again ignore the subcultures of racism, a warrior mentality, and anti-professional behavior that exists within many police departments.

But let us also honor the heroes on our police departments who under the most trying circumstances today still report to the job and protect us.  When I see a police officer on the job, I try to say thank you and thereby remind them that the vast majority of us are not among the shrill voices of the anti-police haters.  Let’s take every opportunity to let the brave men and women who are persevering in police protection that we are proud of them.  They became cops to help people, and the people need to honor that when appropriate.

Continue reading

An Open Letter About/To Senator Marco Rubio on the Eve of the Senate Trial Verdict

In 2016, I was a proud supporter of Senator Marco Rubio’s campaign for the Republican nomination for President. I put a Rubio sign in my front yard. I blogged about my support for Rubio. I encouraged people I knew to turn out for Rubio at the Minnesota caucuses. I attended the Minnesota caucuses, where my precinct voted overwhelmingly for Rubio. Although Donald Trump carried primaries nearly everywhere else that day, the good people of Minnesota stood for principle and character, giving the strong win to Marco Rubio.

In 1980, I was a delegate to the Republican National Convention, as part of the Montana delegation that put Ronald Reagan over the top for the nomination. In 2016, I thought I saw in Marco Rubio another powerful leader of principle and character. Rubio integrated conservative values with equal opportunity. Rubio spoke openly of his Christian faith and how it provided moral guidance to his political role. He saw faith and people of faith as playing a key role in promoting the common good for people of all faiths and beliefs. I saw him as offering us the best of a person of deep faith and positive spirit in seeking political office.

After the tragedy of Trump’s nomination and then the start of the long four-year downward spiral of the Trump presidency, Rubio’s moral standing appeared to falter, not by words or action but too often by silence. From time to time, Rubio would return to his first values and separate himself from this or that of the worst of Trump’s outrages. Indeed, I often defended Rubio to others who were dismayed by the Trump perversion of the conservative movement.

No more.

Barely a month ago, we watched a defeated president call for his extremist followers — the White Nationalists and conspiracy theory crazies that Trump had welcomed for four years — to join him at what he promised would be a “wild” rally on January 6 to overturn the election results. Once again drawing on his repertoire of violent imagery, Trump enraged the crowd and then sent his crazed mob down Pennsylvania Avenue to the Capitol. Repeating word-for-word what Trump had told them, the mob chanted Trump’s slogans and lies as they attacked the citadel of democracy. We watched the Trump mob beat police officers with Trump flags.

When Trump’s long-delayed response came hours later, he said of these domestic terrorists who were acting in his name, “We love you. You’re very special.”

Documenting history is a moral obligation if we are ever to learn from mistakes and aspire to something better. Over the past few days, the impeachment managers have done exactly that. As graphic and disturbing as was the video and documentary evidence, we as citizens were rightly called to bear witness along with the Senate to Trump’s inflammatory words and to the Trump mob attack on the Capitol.

Then we learn what Marco Rubio thinks about this. He branded the whole thing as “stupid.” To be sure, he said that Trump bore responsibility for what happened. But he nonetheless said that he wanted to end it as soon as possible and, indeed, even before any evidence was presented. And Rubio promised to join most of his fellow Republicans in the Senate in giving Trump a pass for the most dangerous attack on American democracy in more than a century. In fairness, however, Rubio said this before we saw the full story in living color.

I pray that Marco Rubio will think carefully about what he now has seen. I hope that he did not turn his eyes away, but watched carefully and thoughtfully. I urge him to draw on the conscience that he spoke of during his 2016 presidential run. Please consider, Senator Rubio, that you may be on the wrong side in dismissing the infamous events of 1/6 as something to rush past “at the first chance” to “end” this. Do not allow others behind the scenes to sweep away the broken glass, while you fail to demand that justice be rendered against the president who shattered the windows of American democracy.

Now is the time. Later recognition that this opportunity was lost is simply too late. It’ll be too late for history, which will not look kindly on those who hastened to move past this outrageous episode. It’ll be too late for our country which needs a new beginning. It’ll be too late for the Republican Party which has tolerated a faction that accepts political violence and desperately needs to move on to a different and more uplifting path.

Please surprise me, Senator Rubio. Please let us see the same man of principle, character, and conscience that inspired me in 2016. Prayerfully and regretfully, but firmly, vote to convict Trump. Let the truth set you free.

Mixed Feelings from a Department of Justice Alum About the Belated Ethical Stand by DOJ Leaders at the Close of the Last Administration

My affectionate professional relationship with the U.S. Department of Justice (DOJ) has persevered in one form or another for more than three decades.

After working as a legislative assistant to a U.S. Senator on Capitol Hill and clerking for a U.S. Court of Appeals judge, I was fortunate to be chosen through the Honors Program to become an appellate attorney at Main Justice in Washington, D.C. For three years, I represented a wide variety of government officials (from the President and Cabinet secretaries to line government employees) and federal agencies (from the Central Intelligence Agency and Department of Defense to the U.S. Postal Service). I was the attorney on appellate cases in the U.S. Courts of Appeals and the Supreme Court. The subjects ran across the civil litigation spectrum, from constitutional challenges to government programs to simple tort claims against the government.

That wonderful opportunity for a young lawyer proved to be the beginning of my life's work.

As a law professor, I have devoted much of my academic attention to civil litigation involving the federal government. I have authored the hornbook on "Litigation With the Federal Government," published by West Academic Press in 2016 and now on contract for a new edition in 2022. I have also published the only law school casebook on the subject, having now taught the course more than a dozen times. I have written many, many scholarly articles on jurisdiction over government cases, contract and takings disputes with the federal government, attorney's fee recoveries against the federal government, the Federal Tort Claims Act, etc. Most recently, I have been working on federal government accountability for official wrongdoing, with a focus on redressing sexual violence perpetrated by federal employees.

My pro bono appellate practice over the past decade has put me more than once on the other side of the Department of Justice, when I have been court-appointed counsel for those bringing claims against the federal government and when I have written or joined amicus briefs in the Supreme Court. When appearing opposite DOJ attorneys in court, I have continued to appreciate the professionalism and high standards of ethics of federal government attorneys. As any good lawyer will tell you, it is much easier and more satisfying to litigate against good and responsible attorneys, while it is hard and unpleasant to litigate against poor attorneys. And with the DOJ, you interact with the best of the best. Thus, even as a litigation opponent, my affection for the DOJ remains strong.

Because of those sentiments and my hard-earned knowledge of the vital importance of this legal institution, I have been heartbroken to watch the politicization of the Department of Justice over the past four years by the Trump White House. Especially under Attorney General Barr, DOJ has too often been degraded to the personal law firm of Donald Trump. DOJ’s true mission is to serve as the legal counsel for the federal government as a whole, bearing allegiance not to an individual but to the United States. The devolution of DOJ during the Trump Administration has undermined its role as an independent source of legal advice for the government and executive officials, tarnished its reputation before the courts and public, and caused many of its best and brightest to leave Main Justice.

It was with mixed feelings that I learned of former President Trump’s final disgraceful attempt to recruit the DOJ as a legal foot soldier in his misguided army of insurrection against democratic governance.

Continue reading