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.

Wednesday, September 15, 2021

Initiative on Restorative Justice & Healing at St. Thomas Law

St. Thomas Law opened its doors twenty years ago last month, and one way we are celebrating is by redoubling our commitment to live out our distinctive Catholic mission in ways that meet the needs of our society.  Last week, we launched the Initiative on Restorative Justice & Healing, a coordinated effort to leverage our expertise and resources to help restore relationships fractured by injustice, with a particular focus on racial injustice, sexual abuse by clergy and institutional failures within the Catholic church, and societal polarization.  Directed by my faculty colleague Fr. Dan Griffith, this project is a great example of our mission in action, demonstrating the importance of integrating legal acumen with empathy, concern for the whole person, and the transformative power of human connection.  Fr. Griffith and Professor Hank Shea, a former federal prosecutor, have been co-teaching a course on restorative justice for several years, and we will look to expand those efforts to include a hands-on restorative justice practicum course, community partnerships, externships, lectures, conferences, training sessions, and broader visibility into ways that restorative justice practices can help bring healing to our communities. 

With an understanding of justice as right relationships, we believe that this work can be a core component of Catholic legal education. 

This video (created by Hunter Johnson) is a helpful introduction to the role that restorative justice has played in the resolution of clergy sexual abuse cases in our Archdiocese, and this video of last week's launch event provides a preview of the Initiative's potential impact.  Restorative justice pioneer and former Wisconsin Supreme Court Justice Janine Geske will chair the Initiative's advisory board.

September 15, 2021 in Vischer, Rob | Permalink

Friday, July 2, 2021

Bill Cosby's release and the rule of law

As we begin the 4th of July weekend, we should not celebrate the fact that serial rapist Bill Cosby has been released from prison. His freedom is yet another trauma inflicted on his victims. We should, however, be grateful that we live in a country where the rule of law is followed, even when it results in wrongdoers going free.

Back in 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand reported that Bill Cosby had sexually assaulted her in 2004. After investigating, Castor concluded that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against [him] . . . could be proven beyond a reasonable doubt.” Castor decided that the Commonwealth of Pennsylvania would refrain from prosecuting Cosby, thus allowing him to be forced to testify in a civil suit brought by Constand.

This decision meant that the Fifth Amendment’s privilege against self-incrimination would not be available to Cosby – i.e., there was no possibility of criminal charges being brought based on Constand’s allegations. So Cosby provided four sworn depositions in Constand’s civil suit – not once invoking the Fifth Amendment – and ended up settling the suit for $3.38 million.

After the records of the civil suit were released in 2015, Castor’s successor as District Attorney reopened the criminal investigation of the Constand case despite being warned by Castor that “I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” The criminal case nevertheless proceeded, and the deposition testimony Cosby provided in the earlier civil suit was crucial to the prosecution.

In this week's ruling, the Pennsylvania Supreme Court observed that courts are obligated “to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Society “holds a strong interest in the prosecution of crimes,” but “no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” Accordingly, the Court ruled, Cosby’s convictions and sentence must be vacated.

My favorite explanation of why the rule of law matters is offered by Robert Bolt in “A Man for All Seasons” when he depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law:

William Roper: “So, now you give the Devil the benefit of law!"

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?"

 

William Roper: “Yes, I'd cut down every law in England to do that!”

 

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

American courts must take seriously the rights extended by our Constitution, even when – especially when – the person seeking their protection deserves no public sympathy or solace. I’m not glad that Bill Cosby is free, but I’m glad I live in a country where judges decide his freedom based on what the law requires, not on what they think he – or any of us – deserve.

July 2, 2021 in Vischer, Rob | Permalink

Monday, June 28, 2021

Ron DeSantis and the GOP's (literal) demonization of the Left

I've written a new op-ed for Religion News Service:

Earlier this month, Florida Governor Ron DeSantis — viewed as a leading candidate for the 2024 GOP presidential nomination — received several standing ovations during his speech to the Faith and Freedom Coalition’s “Road to Majority” conference. He told the audience that “you got to put on the full armor of God” to “take a stand against the left’s schemes,” for “you will face flaming arrows but take up the shield of faith and fight on.”

This was a reference to a passage in the New Testament in which the Apostle Paul implored the Ephesians to:

“Put on the full armor of God, so that you can take your stand against the devil’s schemes.  For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms. Therefore, put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. … (T)ake up the shield of faith, with which you can extinguish all the flaming arrows of the evil one.”

The dubious interpretive gymnastics required to apply Paul’s spiritual admonition to today’s hyperpartisan political landscape is just the latest example of Republican politicians aggressively merging their political and Christian identities. This isn’t particularly new: America’s politicians have always exploited our faith for votes. What’s different is that the tone of the political discourse has shifted as the religious landscape has changed in some pretty significant ways. 

The first change to keep in mind is that American Christianity is declining. In 2019, 65% of American adults described themselves as Christians, down 12 percentage points over the previous decade. With fewer Christians to offend and more non-Christians in the marketplace, media providers, corporations and universities are staking out positions on “culture war” issues that are in tension with traditional Christian beliefs.

This phenomenon contributes to a perception among many American Christians that they are a persecuted minority surrounded by an increasingly hostile culture. Most white evangelicals today believe that Christians are more likely to face discrimination in the United States than Muslims. If Christians believe they face an existential threat, they will tend to support candidates whose rhetoric matches the gravity of the moment.  

The second change relates to the shift in party coalitions. Today, according to Pew Research, about half of Democratic voters identify as Christian, down from 73% as recently as 2008. The percentage of Democratic voters who are religiously unaffiliated has doubled during that time, from 18% to 38%. The change among Republicans has been more modest: Christians are 79% of Republican voters, down from 87% in 2008. Only 15% of Republican voters are religiously unaffiliated, up from 9% in 2008. 

This shift means that Republican politicians have an incentive to underscore the religious beliefs that most Republican voters hold in common and that many Democratic voters do not. Ezra Klein, in his 2020 book “Why We’re Polarized,” explains that group conflict today is not primarily motivated “by zero-sum collisions over resources or power,” but by the psychological desire to increase difference between the in group and the out group.

The result, according to University of Maryland professor Lilliana Mason in her 2018 book “Uncivil Agreement,” is our current predicament in which “partisan identities fall into alignment with other social identities, stoking our intolerance of each other to levels that are unsupported by our degrees of political disagreement.”

So, it may be in the short-term self-interest of Gov. DeSantis and other GOP presidential prospects to describe policy disagreements with language traditionally reserved for spiritual battles against demonic forces. But that does not mean that such rhetoric is anything but toxic, for both democracy and the public witness of Christians.

Besides portraying the Gospel itself as a partisan proposition, this language ratchets up the perceived stakes of our debates: our political opponents are not merely separated by ideology; they are enemies engaged in spiritual warfare. 

Further, such rhetoric quickly leads to a spirit of self-righteousness. If those who reject our political views are demonic — as Eric Metaxas and Franklin Graham suggested in a 2020 interview regarding opposition to President Trump, for example — then of course we enjoy the satisfaction of knowing that God is on our side. If we refuse to recognize the possibility that our political tribe is just as capable of evil as the other side is, we are denying the reality of sin.

That’s a theological problem, but it’s also a political one. Self-righteousness obscures the mutual fallibility on which the give-and-take of democracy depends. If our tribe is on God’s side and our opponents are on Satan’s, why would we ever consider compromise?

Pushing back against this rhetoric does not require a retreat to some sort of imagined secular space — the resources for resistance are available within Christianity itself.

Christians have long used religious language to advocate for particular policies, and there is nothing wrong with doing so provided that the religious language is an entry point, not the entirety of the argument.

The rule of law requires that the lawgiver offer reasons that are rationally accessible, even if not agreeable, to all. On both sides of the political spectrum, the most effective advocates convey the public relevance of Christian values in terms that are wide open to disagreement.  

In his 1984 State of the Union address, President Reagan explained: “We must be cautious in claiming that God is on our side, but I think it’s all right to keep asking if we’re on his side.” Though the demographics of the American electorate have changed over the ensuing decades, the underlying principle has not: When we bring our faith into politics, a little humility goes a long way.

June 28, 2021 in Vischer, Rob | Permalink

Closure on the 2020 election

In the past week, three news stories that may have escaped widespread attention are nevertheless crucial to bringing closure to the 2020 presidential election.

First, a Michigan senate committee led by Republicans issued a 35-page report on its investigation of claims made regarding election improprieties and irregularities. The committee found “no evidence of widespread or systematic fraud in Michigan’s prosecution of the 2020 election.” Regarding Antrim County (the county at the center of many claims), the committee found that “all compelling theories that sprang forth from the rumors surrounding Antrim County are diminished so significantly as for it to be a complete waste of time to consider them further.” In conclusion, the committee urged citizens to “be confident the results represent the true results of the ballots cast by the people of Michigan,” and to “use a critical eye and ear toward those who have pushed demonstrably false theories for their own personal gain.”

Second, a New York court suspended Rudy Giuliani from practicing law based on falsehoods he knowingly spread while representing President Trump. Giuliani’s defense was not that his statements were true, but that he did not know they were false at the time he made them. For example, he claimed repeatedly that Pennsylvania sent out 1.8 million absentee ballots before the election, but nearly 2.6 million absentee ballots came in during the election. In reality, 3.08 million absentee ballots were sent out by Pennsylvania. In his disciplinary proceeding, Giuliani said that he relied on an unidentified member of his team who took the information from the Pennsylvania website, which allegedly posted the incorrect information. The court observed that there was no evidence to support Giuliani’s explanation, no screen shot of the website with the mistaken information, no affidavit or other information from the unidentified team member. Giuliani did not bother to contest the court’s observation that his earlier statements were false. There were similar inquiries about his other statements regarding election fraud and irregularities. No one disputed that his statements were false; the only dispute was whether he knew they were false when he made them.

Third, former Attorney General William Barr, one of President Trump’s core loyalists, told reporter Jonathan Karl, regarding the stolen election claims, “It was all bullsh*t.”

Just as President Trump was legitimately elected in 2016, President Biden was legitimately elected in 2020. You may love him, you may hate him, or you may be somewhere in between. But let’s ground our criticisms in reality. We already have plenty of issues to disagree about. The outcome of the 2020 election should not be one of them.

June 28, 2021 in Vischer, Rob | Permalink

Thursday, June 17, 2021

Fulton v. City of Philadelphia: the rule of law persists in an age of political tribalism

As the world waited for the Supreme Court’s ruling in Fulton v. City of Philadelphia, the stage was set for another headline-grabbing battle in our never-ending culture wars: the religious liberty of a Catholic foster care agency versus a municipal government committed to ending discrimination against same-sex couples. This morning, as advocates on both sides were ready to crank up the outrage-fueled fundraising machines, the Court issued its ruling in favor of the Catholic agency. And remarkably, it was unanimous, demonstrating once again that the rule of law does not stick to our increasingly polarized political scripts. Throughout this era of tumult and tribalism, our judiciary reminds us that the law is not just a set of political preferences dressed up with fancy words. Principles and precedent continue to matter.
 
So how did this case end up as a unanimous ruling? The dispute arose from Philadelphia’s decision not to renew its contract with Catholic Social Services (CSS) to place children with foster parents unless CSS agreed to include same-sex couples. The City argued that the refusal to include same-sex couples violated a non-discrimination provision in the agency’s contract with the City, as well as the non-discrimination requirements of a city ordinance.
In an opinion joined by all eight of his colleagues, Chief Justice Roberts observed that CSS “does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children,” and “[n]o same-sex couple has ever sought certification from CSS.” If a same-sex couple did seek to be certified, “CSS would direct the couple to one of more than 20 other agencies in the City, all of which currently certify same-sex couples.” (In other words, there is no shortage of opportunities in Philadelphia for same-sex couples to serve as foster parents.)
 
The Court held that the City’s refusal to renew CSS’s foster care contract violated the First Amendment’s Free Exercise Clause, recognizing at the outset that “the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”
 
That wasn’t the end of the analysis, though, because of a 1990 Supreme Court ruling that loomed over this case: Employment Division v. Smith. In Smith, the Court held that neutral and generally applicable laws do not violate the Free Exercise Clause even if they negatively impact religious practices. In Fulton, the City argued that its prohibition on sexual orientation discrimination was both neutral and generally applicable, and as such, CSS’s Free Exercise claim must fail.
 
The Court disagreed because the City’s non-discrimination requirement permitted a party to seek an exemption, and “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”
 
Once a law that burdens religious exercise is deemed not generally applicable, it falls outside the scope of Smith and is thus subject to strict scrutiny. This means that the law can only survive if it advances government interests of the highest order and is narrowly tailored to achieve those interests. Put more simply, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”
 
The Court acknowledged that important interests are at stake in the non-discrimination requirement, but found that the City failed to show how granting CSS an exemption would jeopardize those interests: “If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”
 
So every Justice agreed that CSS should prevail. But three Justices – Alito, Thomas, and Gorsuch – were ready to go further and overturn Smith, pointing out in a concurring opinion that the rule permitting “neutral and generally applicable” laws to withstand constitutional scrutiny, no matter their impact on religious exercise, is deeply problematic. For example, under Smith, the Volstead Act implementing Prohibition would have been constitutional even if it contained no exception for the sacramental wine necessary for Catholic masses. Or a ban on infant circumcision would be permissible, even if it applied to prohibit important Jewish and Muslim practices.
 
Because the Court avoided Smith by focusing on the possibility of an exemption in Philadelphia’s non-discrimination requirement, the concurrence warned that today’s decision “might as well be written on the dissolving papers sold in magic shops” because, “if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power.”
 
So even in a unanimous ruling, important disagreements lurk. But even those disagreements don’t align easily with our political tribalism. The author of Smith against whom conservative stalwarts Alito, Thomas, and Gorsuch were railing? Conservative judicial hero Antonin Scalia. The rule of law does not lend itself to simplistic predictions based on which President appointed which judge. (In today’s other noteworthy ruling, Trump appointees Barrett and Kavanaugh joined five of their colleagues in upholding Obamacare against a challenge brought by Republican-led states.)
 
The sorting that has occurred between American conservatives and liberals maintains an ideological core, but it has morphed into something broader and deeper than ideology. In his book "Why We’re Polarized," Ezra Klein points out that the two major political parties today “are sharply split across racial, religious, geographic, cultural, and psychological lines,” and that these identities “are fusing together, stacking atop one another.” Further, since “these mega-identities stretch across so many aspects of our society, they are constantly being activated, and that means they are constantly being reinforced.” In other words, a conflict between religious liberty and LGBT rights aligns with the more fundamental conflict between our stacked social identities. We don’t need to choose a side; we already know which side we’re on based on where we live, what cable news we watch, what car or truck we drive, where (and if) we go to church, even where we shop.
 
The rule of law reminds us that it should not and need not be that simple. I’m confident that Justice Sotomayor and Justice Thomas, for example, do not run in the same political circles or derive their identities or sense of belonging from the same sources. And yet they can step back from the noise, examine the facts of a situation, apply sound principles not of their own creation, and agree on an outcome. Not every case will be unanimous, and a 5-4 ruling may emerge later this month. But members of the Supreme Court have not given up hope that they can still reason together to resolve deeply contested issues. And if they can do that under the white-hot national spotlight, so can the rest of us.

June 17, 2021 in Vischer, Rob | Permalink

Thursday, April 29, 2021

Why the Liberal Arts Matter to Catholic Legal Education

Why bother with the liberal arts? Because the liberal arts are core to our mission as a Catholic university.  If we had to distill it to a very simple message, the liberal arts show that faith and reason have nothing to fear from each other.  But it’s deeper than that.

Pope Francis has explained that Catholic universities must help students face the questions of “why,” by linking knowledge with purpose.  Facing the questions of “why” implicates the “epistemological character of education which concerns the whole span of knowledge,” and “[t]he link between knowledge and purpose refers to the theme of intentionality and to the role of the subject in every cognitive process.” In other words, “Completely impersonal experiences do not exist.”

Let’s unpack that for a minute.

The role of the subject in every cognitive process.  So for a law school, one might be tempted to argue that a liberal arts approach is irrelevant – just teach me what I need to pass the bar exam and get a job as a lawyer: legal doctrine and technical skills, period.  One must resist this temptation because, if we want to educate for professional excellence, we have to help form the person, not just teach a trade.

And we have to help each student understand their own agency in who they are becoming as a professional.  They are not just passive vessels to receive information about Torts or Civil Procedure.  They have to be able to step outside their heads so that they can see themselves as an agent in the world, growing over time, pursuing alignment between their own gifts and values and the world’s needs.  Even a professional school is forming students for a dynamic lifelong journey.

So how does a law student get outside their own heads enough to critically evaluate and prepare for their own agency?  Well, it’s not by memorizing law.  It could be, for example, by seeing the relevance of other fields of knowledge to their own agency in legal practice.  So maybe it’s contextualizing their work in family law with an understanding of sociology, maybe it’s seeing how court rulings on religious liberty interact with the theological beliefs of those affected, maybe it’s recognizing the self-serving logic employed by those who wield power in our legal system by applying the insights of philosophy to uncover the incoherence of their justifications.  But more important than any of those more particular examples, I think it requires being drawn out into other narratives that open up new ways of thinking about their lives, not just their professional identities.

For example, I’ve assigned my students Tolstoy’s The Death of Ivan Ilych, not because they need to know about the 19th century Russian legal system, but because it is very helpful for them to lie next to Ivan Ilych on his death bed and reflect back on a life of devotion to the wrong things.  To lament time wasted on being impressive, on chasing prestige and status. 

Tolstoy can get my students out of their own heads long enough to think deeply about the life to which they aspire.  That’s good for them, and it’s also good for our world.   

C.S. Lewis wrote that:

[W]e need intimate knowledge of the past. Not that the past has any magic about it, but because we cannot study the future, and yet need something to set against the present, to remind us that the basic assumptions have been quite different in different periods and that much which seems certain to the uneducated is merely temporary fashion. . . .  the scholar has lived in many times and is therefore in some degree immune from the great cataract of nonsense that pours from the press and the microphone of his own age.

I’d expand Lewis’s point.  A knowledge of history can help us discern and discount the nonsense of our current age, and a knowledge of other disciplines can help students discern and discount the overreading of insights from any one particular discipline – or maybe put more gently, can help them contextualize what a single discipline has to teach us about ourselves and the world.

Here’s an example of why this matters.  The first case our new law students read every year is Buck v. Bell, a 1927 case in which the U.S. Supreme Court upheld a state law permitting the forced sterilization of women deemed mentally incompetent. Oliver Wendell Holmes wrote an opinion on behalf of the Court expressing concern that the offspring of the mentally incompetent would likely become criminals and would drain resources from society.  He concluded that “three generations of imbeciles are enough.”

A brand-new law student can bring to bear insights from the fields of history, economics, biology, philosophy, and theology to show why Justice Holmes was wrong as both an empirical and a normative matter.  So on the first day of classes at our law school, the most important discussion students have about the law is actually about the liberal arts.  It’s why forming the lawyer entails forming the person.  And it’s a journey of formation that is foundational to Catholic law schools. 

April 29, 2021 in Vischer, Rob | Permalink

Sunday, April 18, 2021

Bearing witness to the pain

Every year at orientation, when we’re explaining to our new law students the importance of disclosing their past arrests and citations, I share the story of when I was arrested for trespassing as a senior in high school. A friend and I had entered an abandoned factory to investigate a story we were working on for the school newspaper. It’s sort of a funny story, and I tell it so students know it is possible to overcome past infractions they are concerned about as they start law school.

There’s another story I don’t share.

A couple of months before my trespassing arrest, my friends and I stopped at a liquor store to buy beer with our fake IDs. As I walked in, a teenager I didn’t know approached me in the parking lot and asked if I would buy alcohol for him too. I agreed, and when I came back out and was handing him what he asked for, a uniformed officer who had been watching the whole time walked up and told us to “stop right there.” I turned and ran to my car, got in, and drove as fast as possible out of the parking lot. The officer had taken down my license plate, so I was picked up later that evening, booked, released, and eventually fined after a court appearance.

There was no question that I had committed a crime – the officer saw me hand liquor to someone who was obviously underage. There was no question that I had failed to comply with the officer’s order – I ran from him after he told me to stop. And still, I was given the chance to sleep in my own bed that night, to grow up and get my head on straight, to go to college and law school, to be certified as having the requisite character and fitness to practice law, to teach hundreds of aspiring attorneys, to marry and have kids, to watch my daughters grow up – in other words, to lead a full life that has been shaped but not defined by my many mistakes.

I share this story now because it is too easy for many of us to disconnect from the pain that surrounds us. Many white Americans – including me – like to build our life narratives in terms that have nothing to do with race. Whether or not you’ve had interactions with law enforcement, race has shaped intergenerational wealth, geographic mobility, access to education, job opportunities, the likelihood of building home equity, exposure to race-based trauma, and myriad other realities of American life. We may not agree on the labels we should attach to the role that race has played in our lives, and we may not agree on the most prudent path forward. But if you live in America – and especially if your parents and grandparents lived in America – race has been part of our stories, whether we’re ready to acknowledge it or not.

This past week has been a difficult one in the Twin Cities. The coming week may be much, much more difficult. As Christians, we are called to bear witness to the pain, even if we do not feel it as deeply or as personally as others do. I encourage us to redouble our commitment to the empathy that is made possible by truthful stories about ourselves and the world. Empathy is essential right now because it is a fertile ground for love, and love, in the words of Martin Luther King Jr., “is the only cement that can hold this broken community together.” We are therefore “commanded to love . . . to restore community, to resist injustice, and to meet the needs of my brothers.”

April 18, 2021 in Vischer, Rob | Permalink

Sunday, April 11, 2021

Catholic legal education in an age of political tribalism

As we continue to make progress toward a post-pandemic future, we need to recognize that COVID is not the only force that has driven us apart from one another.  We are hopeful that social distancing requirements will be relaxed in the coming months, but we’d be naïve to believe that physical proximity will be sufficient to bring us all back together. 

I was reminded of that reality this morning by a Star-Tribune article about the bar owner in Albert Lea, Minnesota who defied the governor’s pandemic restrictions and is now on the run.  What was most striking in the coverage were the diametrically opposed opinions of Albert Lea residents: some praised her for bravely resisting government overreach, and some condemned her for prioritizing herself over her community’s health. 

So how should we train our graduates to be effective lawyers for the bar owner in Albert Lea?  She has, I presume, a deep-seated opposition to wearing masks as a response to the COVID pandemic, as may virtually all of her customers, business associates, family members, and friends.  When she asks our graduate for advice regarding compliance, how should our graduate respond?  With a categorial “you must comply,” or should she also opine on the chances of an enforcement action, the potential penalties, or the legality of encouraging customers to invoke disability exemptions from mask-wearing?  Does our graduate’s own view of masks’ efficacy as a virus safeguard matter to her advice? Does our graduate’s belief that her client is misunderstanding the purpose and intent of the mask mandate matter to her advice? What if she believes that the misunderstanding is shared widely by all of the groups whose views matter to her client? And how can she ensure that she is navigating these tensions with client-centered humility without undermining the rule of law?  Put simply, how should relationships matter to a lawyer’s work in our deeply divided nation?

This is not just about COVID, of course.  Our responses to pandemic restrictions are part of a broader set of beliefs that together comprise the social identities that are driving the grand sorting of our nation into increasingly distant and hostile camps.  Our perception of the debates surrounding the Derek Chauvin trial, the influx of undocumented immigrants in Texas, Georgia’s new election laws, climate change, the prioritization of religious liberty, and a wide variety of pressing policy issues are shaped by the lenses we bring.  Increasingly, Americans’ lenses are based on the camp with which they identify, rather than on their own assessment of the particular issue’s merits. 

This is one reason why I believe that legal education is absolutely essential to our nation’s future.  Law schools teach suspension of judgment, critical thinking, the cultivation of trust, precision with language, detached empathy, and the courage to represent unpopular clients and causes – these are all important habits for a divided nation.  And Catholic law schools should bring a long-overlooked dimension to the conversation: a willingness to go deeper, to discuss moral claims and the relationships that give rise to them.  If lawyers are not attentive to this dimension, we will be of limited help bridging a divide that is not primarily about legal interpretation or technique, and is not simply a product of opposing moral claims—it’s a product of cultures that shape and sustain opposing moral claims. Lawyers need to learn how to build trust across cultural boundaries.

We should think carefully about how we respond to the pressure points that our nation’s division will produce in the coming days.  We should never use division as an excuse to weaken our moral commitments, to withdraw from political engagement, or to slide toward an apathy-driven acceptance of the status quo.  However, we should be clear that the mission of Catholic legal education is not ultimately a call to win the battle for one warring camp or the other – it’s a call to help restore the relationships that have been broken.

April 11, 2021 in Vischer, Rob | Permalink

Friday, March 5, 2021

Thinking clearly about "cancel culture"

I continue to be concerned by our growing tendency to weaponize shorthand expressions for complicated ideas in ways that shed more heat than light. “Cancel culture” is in the news everywhere one turns, and it is being deployed in ways that are both too broad and too narrow: too broad to the extent the term is applied whenever someone experiences consequences for their actions (even self-imposed consequences, as the brouhaha over Seuss Enterprises' decision to stop publishing six of the author's books reflects); too narrow to the extent that the term tends to be applied to the opposing political tribe, not our own. Before reflexively shouting “cancel culture,” let’s ask ourselves three questions:
 
First, what consequences have been imposed against the person deemed problematic? Has a social media post been criticized by others who find it offensive? That’s criticism, not cancellation. Has a person been disinvited from speaking at a conference or representing an organization based on something they have written or said? That may simply be enforcement of the boundaries surrounding an organization’s identity and values, not cancellation. (And yes, it’s problematic for a newspaper to stake out an identity that precludes the expression of controversial ideas.) Has a company been subjected to calls for a grass-roots boycott by those who find their practices or products offensive? That’s accountability in the marketplace of ideas, not cancellation. Has a company or person been effectively precluded from participating in the marketplace by those who control access to the marketplace? Now we’re getting close to cancellation, but we have to answer another question . . . .
 
Second, who is imposing the consequences? One genius of American pluralism is that people can live out their beliefs by joining together with others to support a particular way of life or moral perspective. Usually this happens through voluntary associations (churches, clubs, charities). But this can also happen through for-profit companies. If the mom-and-pop pharmacy down the street believes that the morning-after pill acts as an abortifacient and so declines to carry it, customers may choose them because of that stance, or customers may avoid doing business there because of that stance. No one would accuse the pharmacy of “cancelling” the big pharmaceutical company that makes the drug. As long as there is a functioning marketplace with viable options, we should applaud the diversity of moral claims reflected in our various associations.
 
But what if Amazon decides to stop selling a controversial book? Amazon – like other Big Tech companies – doesn’t just participate in the market; in a real sense, they function as gatekeepers to the market. When those gatekeepers act to remove certain people or ideas from circulation, we should be concerned. (That doesn’t mean it should never happen – e.g., I don’t think Amazon should sell a do-it-yourself kit for building a dirty bomb at home.) In my view, the power of Big Tech is what makes today’s “cancel culture” debates relevant. Many of the debates today are not really new at all, which leads to the last question . . . .
 
Third, am I tempted to describe as “cancel culture” something that has been happening for many years? Many debates about cancel culture today involve the use of racial, ethnic, or homophobic terms – the N-word most prominently. What’s changed, though, is the words that bring consequences, not our willingness to impose consequences for someone’s choice of words. There was a longstanding list of words that served as red lines not to be crossed (as George Carlin memorably explained), the F-word chief among them. In past eras, you could’ve lost your job, your reputation, and your social standing by uttering obscenities. In a way, we’ve traded the N-word for the F-word as the line not to be crossed, and I think that’s a healthy trade given each word’s history. The notion that words (or images) bring social consequences is not new.
 
Our social norms are changing. Maybe you disagree with those changes – if so, I suggest focusing your arguments on the substance of those changes and why you believe they are detrimental to society. Or maybe you think people shouldn’t experience consequences for the ideas they express – if so, I think your position would actually weaken the rough-and-tumble marketplace of ideas in our country, and that would be a shame. Or maybe you fear that certain arguments or beliefs are being removed from the marketplace, not through the free exchange of ideas, but through the top-down imposition of contested moral norms. If so, I share your concern, but the answer is not to issue blanket condemnation of the “cancel culture” bogeyman – it’s to take on an even more complicated topic: what should we do about Big Tech? (And no, I don’t know the answer to that one.)

March 5, 2021 in Vischer, Rob | Permalink

Saturday, February 20, 2021

"Deeply rooted in white supremacy"

How should we argue about deeply contested issues? This morning our local newspaper published an op-ed repeating an argument I’ve seen several times in recent weeks: warning that the pro-life movement is “deeply rooted in white supremacy.” That would come as a surprise to Clement of Alexandria (who expressed Christian opposition to abortion more than 1500 years before the United States even existed), to Mother Teresa (who criticized political leaders for their permissive abortion policies and their treatment of the poor), to Cardinal Wilton Gregory (America’s first Black Cardinal who has long advocated against both white supremacy and abortion), to Planned Parenthood founder Margaret Sanger (acknowledged recently by the organization as contributing a “racist legacy” through her eugenics ideology), and to millions of Black Americans today who oppose legal abortion at about the same rate as other Americans. To dismiss today’s anti-abortion advocacy as “rooted in white supremacy” disregards history and inflames an already difficult issue.
 
The point I want to make is not about abortion, it’s about how we argue. The effort to label anti-abortion advocates as white supremacists follows efforts to label proponents of single-payer health care as communists. Are there white supremacists who oppose legal abortion? Sure. Are there communists who support single-payer health care? Sure. But there is nothing intrinsic to single-payer health care or anti-abortion advocacy that compels an embrace of communism or white supremacy, and to suggest so is to adopt an approach to political debate designed to shed considerably more heat than light.
 
These are not isolated examples. Increasingly, our political disagreements on particular issues are being absorbed into a broader war between two vast tribal identities. Those who disagree with us on abortion don’t just disagree with us on abortion (or health care or immigration or police reform); they are “the other” – enemies in a winner-take-all battle of good versus evil. If they’re not actually white supremacists (or communists), they might as well be. There is no point in searching for common ground because they are evil, all the way down. Whatever we fear or hate most in the world gets attached to whoever stands in the way of our political objectives.
 
I think this approach to argument is actually a cop-out, a lazy excuse to avoid the hard work of engagement. If I can dismiss those who disagree with me as white supremacists or communists, I don’t have to listen to their arguments, much less offer a substantive response. This is no way to conduct a democracy.
 
There are strong arguments on both sides of the abortion debate, and we should engage them. There are strong arguments on both sides of the health care debate, on the immigration debate, on the police reform debate, and on many other vexing public policy challenges. That’s why they are difficult issues. Simplistic narratives and name-calling don’t make these issues any less difficult, just more toxic. We can do better.

February 20, 2021 in Vischer, Rob | Permalink