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, December 30, 2020

Coming to grips with conspiracy theories

As we close out 2020, it’s important to recognize that one contributing factor to this year’s tumult is Americans’ tendency to embrace outlandish conspiracy theories. When we can’t even agree on basic facts, it makes collaboration to address complex problems extraordinarily difficult. We’re seeing it now predominantly on the right (e.g., unfounded claims of a global conspiracy to steal the election, allegations that COVID is a hoax or that Bill Gates is using the vaccine to track people, the rise of Q Anon), but folks on the left should resist the temptation to feel self-righteous.
Conspiracy theories appeal to a deep-seated human desire for certainty in a messy world, and that appeal is not limited to one side of the political spectrum. Those on the left have traditionally been more likely to ignore scientific data in promoting claims that vaccines cause autism, for example. And polling data from several years ago found that the percentage of Democrats who suspected that the federal government knew ahead of time about the 9/11 attacks was roughly the same as the percentage of Republicans who suspected that President Obama was born in a foreign country. This is a human problem, and one that is growing more dire as many media companies contort to satisfy our demand for content that confirms the beliefs we already have.
So as a new year begins, are there modest steps we can take to guard our minds from the temptation of conspiracy theories? I’ll share three things that have been helpful for me and one that I hope to pursue more in the new year.
The first is pretty simple: I subscribe to our local newspaper. I read the paper every morning because it is one of the only non-self-curated forms of media available to me. And even though I spend much of my day reading things on a screen, I read a hard copy newspaper for the very reason that I can’t just click on the hyperlinks that appeal to me. The physical act of viewing an assortment of primarily local news that is the same assortment my neighbors from across the political spectrum are reading each morning is a small but, in my view, important step toward getting myself out of the information bubble that social media have empowered me to create.
Second, when I argue about ideas – and arguing about ideas is a healthy feature of our democracy – I try to be specific and substantive in my critiques of those with whom I disagree. Name-calling is great if we’re looking for retweets or FB likes, not so much if we’re looking to build mutual understanding. Our arguments should also be coherent. A lack of coherence doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle. This sort of cynicism drives people to disregard our shared capacity for reason and embrace political messages premised on tribalism and us-versus-them narratives.
Third, because many of today's challenges require help from scientists, I try to remember that science cannot tell me what to value, but science can provide insights about our world that help me live out my values. I trust science to do what it does well. Disregarding the findings of science because we’re concerned about the political or religious views of particular scientists just doesn’t make sense. As Steven Pinker puts it, “An endorsement of scientific thinking must first of all be distinguished from any belief that members of the occupational guild called 'science' are particularly wise or noble. The culture of science is based on the opposite belief -- its signature practices (including open debate, peer review, and double-blind methods) are designed to circumvent the sins to which scientists, being human, are vulnerable.”
Fourth – and this is the one I hope to work on more in the coming year – I firmly believe that I should spend more time focused on local politics than on national politics. When I spend my time and emotional energy engaging on national politics, I’m talking about distant figures with whom I have no relationship, and it’s easy for me to cast them as shadowy forces in a global good-versus-evil narrative. When Americans are focused primarily on Donald Trump, Joe Biden, George Soros, or the Koch brothers, it’s no wonder conspiracy theories find fertile ground. The local is important because it’s a path to relationship. We should all have hands-on experience learning that opposing views about the presidential election do not preclude collaboration on beautifying the local park, improving our schools, or creating recreational programs to help at-risk kids. I may still disagree with my neighbor Bill’s views, but it will be much harder to dismiss his views as part of a sinister global conspiracy – he’s just Bill, and I know he loves his kids as much as I love mine. I’m not suggesting that we withdraw from national politics, but we may need to rethink our priorities.
It's a scary world, and we are caught in a downward spiral: as Americans lose trust in each other, we try to make sense of the world by believing the worst about each other, regardless of whether the belief is supported by evidence. And when we loudly proclaim those beliefs, those who disagree with us trust us even less. And the spiral continues. To be clear, we’re not going to rebuild trust and negate the attraction of conspiracy theories overnight. But if we’re hoping for a future that is brighter than the present, we have to start somewhere.

December 30, 2020 in Vischer, Rob | Permalink

Tuesday, December 15, 2020

Responding to a critique re "Staying Calm About CRT"

I’m grateful for Timon Cline’s critique (at the Cantankerous Calvinist) of my MoJ post about Critical Race Theory, as it’s the sort of substantive engagement that is sorely lacking when Christian leaders, as John Inazu puts it, use the CRT “label as a cudgel” against efforts to promote racial justice within the Church.  I welcome Timon’s contributions and have just a few comments:

First, defining CRT.  CRT can be a tough target to pin down, as is the case with many intellectual movements.  I think Timon deems portions of the Delgado/Stefancic primer on which I rely as misleadingly innocuous re CRT’s core beliefs.  I’m sure that depends on whom we consider to be authentically foundational to the movement.  What is the harm, though, of taking the Delgado/Stefancic understanding of intersectionality, for example, identifying the insights it can provide, then articulating precisely where more robust interpretations fall short of the Christian worldview?  I confess, I’m still not sure why intersectionality’s invocation as an expansive “sensibility," in the work of Kimberle Crenshaw, is necessarily a bad thing.  Again, it seems to me to depend on the particular application we’re talking about.

Second, discerning the nature of Christian leaders’ (categorical) objections.  I highly doubt that the SBC seminary presidents are condemning CRT only after closely reading John Finnis’s take-down of Roberto Unger.  I’m not a legal philosopher, and they’re not either.  They – and other Christian leaders – are engaging CRT in theological (and cultural?) terms.  More than the nature and extent of legal indeterminacy, my best guess is they’re concerned about another point Timon makes: “Racism, for CRT, is no longer personal animus on the basis of ethnicity or skin color, but complicity in the status quo of a white dominant society.” Yes, and the allegation of complicity requires sustained attention and unpacking by Christian leaders before they categorically dismiss its insights.     

Third, assessing the threat / influence.  In response to the comparison I drew between CRT (lots of condemnation) and Law & Economics (not much condemnation), Timon is correct that the former has more explicitly acknowledged influence today than the latter does, particularly on college campuses.  But the difficulty of tracing the influence precisely reflects the complexity of this conversation.  If we look at Law & Economics as one manifestation of a worldview premised on the desirability of maximizing individual preferences, it’s tough to argue that CRT has left a more powerful mark than that.

While I may not be ready to join Timon in his overall assessment of CRT, he and I wholeheartedly agree that this is an area in which Christians need more conversation, not less.

December 15, 2020 in Vischer, Rob | Permalink

Church guidance on voting should include rebuilding of social trust

Now that the dust from the presidential election is (hopefully) beginning to settle, we need to revisit the guidance the United States Conference of Catholic Bishops has provided to Catholic voters, not to remove any of the current criteria, but to add what strikes me as a glaring omission: the rebuilding of social trust.

Surveys show that Americans’ trust in institutions and in their fellow Americans is in rapid decline, especially among young people.  This is a broader and deeper challenge than any candidates for political office can solve on their own, with causal connections to media, technology, gerrymandering, and the sorting of America along demographic and geographic lines.

But elected officials play a key role.  It is tempting to say, and many friends and relatives have told me, that “all politicians lie.”  Resting on such categorical assertions abdicates our responsibility as faithful citizens to discern what is true from what is false.  It is simply not the case that Bill Clinton’s inclination toward falsehoods was shared by George H.W. Bush or Jimmy Carter.  And there has been no recent president who trafficked in falsehoods as frequently as President Trump, nor any who weaponized disinformation as a core political strategy as pervasively as he has done.  There are clear differences among candidates, and those differences matter.

And yes, rebuilding social trust is about more than avoiding falsehoods.  It’s also about mutual respect, and characterizations of one’s political opponents as “deplorables,” some Americans as “cling[ing] to guns or religion,” or Mexican immigrants as “rapists,” are also corrosive to social trust.  We need to evaluate candidates in terms of their propensity to speak with respect toward all Americans – that must be part of the equation.

In “Forming Consciences for Faithful Citizenship,” the USCCB addresses solidarity by focusing on the preferential option for the poor.  That’s important, but solidarity also presumes a degree of unity, or at least the semblance of a common perception of reality.  We should aspire to share an accurate understanding of the world before we engage our political opponents on hard questions about human dignity and the common good.  When the “is” is deeply contested, debates about the “ought” are largely pointless.  And when survey data is underscored by stories of Catholics actively participating in Q-Anon and outrageous disinformation events such as the Jericho March, we have a serious problem on our hands. 

So, in addition to the importance of recognizing the truth of the Church’s moral teaching – reflected in policy issues that have long been addressed at election time – the bishops should speak out about truth more generally.  Weaponizing false information to divide Americans is morally unacceptable.  Tackling the many pressing challenges facing our country is only possible if we begin to rebuild social trust.  Truth matters, and it must matter to our elected officials.     

December 15, 2020 in Vischer, Rob | Permalink

Sunday, December 13, 2020

When Lawyers Fuel the Fire

Now that the U.S. Supreme Court has unanimously rejected Texas’s attempt to overturn the election of Joe Biden, it’s worth pausing to reflect on what we’ve learned over the past few weeks about the role of lawyers in our country.  At a time when we need lawyers to bring fact-driven advocacy to our political turmoil, Jenna Ellis and her team have worked furiously to discredit the election‘s outcome, claiming that the election was “stolen” and that President Trump “won by a landslide.” Their rhetoric, though not matched by admissible evidence, has nevertheless fueled distrust of the election results, especially among those already inclined to believe the worst about their political opponents.  By asserting wild claims in press conferences that do not match the evidence submitted with their court pleadings, the Trump campaign’s lawyers have driven cynicism toward our democratic institutions to new levels.

The rule of law depends in significant part on trust. There have always been lawyers – from both the left and right sides of the political spectrum – who make outlandish arguments for which the evidence proves inadequate. The difference with the lawyers’ behavior in the election’s aftermath is two-fold: 1) the far-reaching dangers of an incumbent president using all of his influence to attack our democratic infrastructure as corrupt; 2) the already wide polarization resulting from an ongoing red-blue sorting of our country along demographic and geographic lines. By seeming to legitimize the conspiracy theories circulating on social media, the Trump campaign’s lawyers have brought gasoline to the growing flames of social distrust.

One key dimension of a lawyer’s work is two-way translation: helping opposing parties and decision-makers understand our clients’ perspectives, and helping clients understand the perspectives of decision-makers and opposing parties. When those relationships cross the red-blue chasm, we may need more than translation – we may need a restoration of trust as a precursor to mutual understanding. In an environment as politically charged as the election’s aftermath, wisely stewarding the trust on which our institutions depend is especially important.

You can read the rest here.

December 13, 2020 in Vischer, Rob | Permalink

Friday, December 11, 2020

Three cheers for an independent judiciary!

I'm feeling grateful for our independent judiciary, and I hope you are too. And no, I’m not just talking about the U.S. Supreme Court's unanimous rejection of Texas’s attempt to overturn the election results in other states.  It’s also important to note that the Court issued four unanimous rulings yesterday on a variety of thorny legal issues. Since 2000, in fact, a unanimous decision has been more likely than any other result.  The public too often has – and too often is deliberately given – the impression that the Supreme Court is simply another battlefield for our political and cultural tribalism with “conservative” justices pitted against “liberal” justices in a no-holds-barred death match.  It’s not.  Our laws are shaped by competing visions of the good, to be sure, but the rule of law matters in ways that transcend politics. The legal merits of a case are not simply a function of political preference.

Even the 5-4 decisions are about more than politics.  Back in 1989, Justice Scalia provided the fifth vote in ruling that the constitutional right to free speech includes a right to burn the American flag.  He later explained, "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."

We are a nation of laws, not monarchs.  In the election’s aftermath, the legal system is working as intended.  Judges are focusing on the evidence and applying laws established through legislation and centuries of precedent, regardless of their own political affiliation. 

To cite one example of many, Justice Brian Hagedorn of the Wisconsin Supreme Court was president of the conservative Federalist Society in law school and served as Republican Governor Scott Walker’s chief counsel. Last week, when his court rejected an attempt to invalidate Wisconsin’s election results, he wrote separately to warn that “judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election." 

At a time when long-accepted political norms are under serious strain, our courts’ continued commitment to the rule of law is a reason for gratitude and hope.

Robert Bolt, in “A Man for All Seasons,” famously 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!”

In our highly polarized nation, Americans do not agree on who the Devil is.  Fortunately, we don’t have to.  An independent judiciary helps us ensure that the laws apply to devils, angels, and everyone in between.

December 11, 2020 in Vischer, Rob | Permalink

Thursday, December 10, 2020

From "I Have a Dream" to "Stop the Steal"

On December 12, in what organizers are calling “the Jericho March,” Christians are invited to gather in Washington D.C. to protest fraud and corruption in the presidential election. Organizers are asking participants to march around the U.S. Capitol seven times as the culmination of regional protests in which people of faith will march seven times daily around state capitols (in swing states, of course), following the biblical example of Joshua in bringing down the walls of Jericho. The event’s organizers urge participants to “Let the Church Roar!”
This comes fifty-seven years after Martin Luther King Jr. gave his “I Have a Dream” speech at another Washington protest steeped in Christian imagery. Do the sharp contrasts in the events tell us anything about Christianity’s changing relationship to American culture? Three broad conclusions emerge.
First, Christians have become more comfortable claiming victim status. Dr. King did not speak in terms of victimhood. He shared powerful stories of injustice without focusing on his own suffering, much less exaggerating it. After years of conservatives mocking liberals for playing the victim, President Trump is embracing the label wholeheartedly on behalf of his supporters. Consider last weekend’s rally at which the President proclaimed, in conjunction with alleged election fraud, "We're all victims. Everybody here, all these thousands of people here tonight, they're all victims. Every one of you.” Surveys show that a majority of white evangelicals believe that Christians face discrimination in the United States and are more likely to face discrimination than Muslims.
Second, facts now seem to matter less than feelings. The election conspiracy claims have been wildly unsuccessful in court – where evidence matters a great deal – but quite popular on social media, where a viral video doesn’t require more than a passionately articulated hunch. After the President’s rally last weekend, Rush Limbaugh confidently concluded that thousands of people would not have shown up to see someone who lost the election. Trump is not a loser, so he could not have lost, the reasoning seems to go. The 1963 March on Washington, by contrast, was not based on hunches or gut feelings; it followed decades of grass-roots organizing and litigation documenting specific policies and practices of racial injustice to be remedied through proposed legislation. The Christian call to justice targeted both hearts and minds.
Third, we’re no longer all in this together. In 1963, Dr. King left no ambiguity that “we cannot walk alone,” noting the many “white brothers” who “have come to realize that their destiny is tied up with our destiny,” and “that their freedom is inextricably bound to our freedom.” Dr. King protested against the perpetrators of injustice, to be sure, but his goal was not power to be wielded against “the other” – his goal was the restoration of relationships broken by segregation, the building of what he called the beloved community.
By contrast, the Jericho March organizers warn that “globalists, socialists, and communists” are set to “destroy our beautiful nation by sidestepping our laws and suppressing the will of the American people through their fraudulent and illegal activities in this election.” Several of the Jericho March speakers have called for the President’s political enemies to be jailed for attempting to steal the election. The beloved community is very tough to discern in such rhetoric.
Our country has benefited immeasurably from a rich and noble tradition of Christians protesting injustice, and I fully support the right of religious believers to protest peacefully for whatever cause they choose. I wonder, though, whether Jericho March organizers understand the messages about our faith that this particular cause is conveying to the broader world. What if Christians on both the left and the right were to join together to proclaim that:
  • Christians in other parts of the world suffer horrible persecution, and we should lift our voices on their behalf early and often.
  • Facts are essential to the fair administration of our elections, and we will respect the rule of law by trusting the independent judiciary to sort out those facts when we disagree.
  • The diversity of our nation is a blessing, and the voice of every American matters – especially those who have traditionally been excluded from our national conversations, regardless of whether they agree with us about politics.
That strikes me as a cause worth marching for.

December 10, 2020 in Vischer, Rob | Permalink

Wednesday, December 9, 2020

Staying Calm About Critical Race Theory

In the wake of George Floyd’s killing and subsequent protests drawing attention to our nation’s scandalously wide racial disparities, some American Christians appear to have become convinced that we must rise to meet an urgent threat: Critical Race Theory. Last week, for example, Southern Baptist seminary presidents issued a joint statement condemning racism but affirming that “Critical Race Theory, Intersectionality and any version of Critical Theory is incompatible with the Baptist Faith & Message.” It’s hard to know precisely why the presidents felt compelled to disavow Critical Race Theory (CRT) in particular, though Jason Allen, president of the Midwestern Baptist Theological Seminary, explained that “Confusion abounds on [CRT], but one thing is clear: the closer you look into the history, advocates, and aims of Critical Race Theory the more troubling it becomes.” Dr. Allen is correct that confusion abounds, with vague accusations of Marxism at the core of many criticisms, so let’s take that closer look.

Richard Delgado and Jean Stefancic, two CRT pioneers, explain that the wide-ranging and loosely organized movement is united by five key propositions. First, racism is “ordinary, not aberrational,” and so it is difficult to root out apart from the most glaring examples (i.e., we can end lynching, but it’s much more difficult to end employment discrimination). Second, because racism can advance the material and psychological interests of white people, there is limited incentive to eradicate it. Third, race is a product of social thought, not biology, and societies racialize different people at different points in history. Fourth, no person has a single, unitary identity, and “everyone has potentially conflicting, overlapping identities, loyalties, and allegiances.” (This is intersectionality.) And finally, because of their different life experiences, people who are Black, Indian, Asian, or Latino/a may be able to communicate insights that white people are unlikely to know on their own.

A faithful Christian can disagree with one or more of these core tenets, but Christian orthodoxy does not compel disagreement with any of them. Are there particular arguments made by particular advocates who invoke CRT that are in tension with Christian beliefs? Yes, including arguments, for example, grounded in cynicism about the efficacy of free will or the possibility of objective truth. Occasionally statements are made implying that historically oppressed populations not only have important insights to offer, but a sort of moral superiority as a result of their oppression. However, suggestions that the entire school of thought holds zero educational value for Christians is unjustified.

Indeed, CRT offers insights that may take Christian teaching more seriously than many Christians do. Consider, for example, the contentious issue of systemic racism. If the Fall tainted only individual choices and left our human-created systems untouched, that would be a surprisingly weak – and unbiblical – understanding of Genesis 3’s far-reaching effects.

Moreover, some Christians have rooted their opposition to CRT in what amounts to a radical individualist worldview – i.e., “I didn’t engage in slavery or Jim Crow, so what does racism have to do with me?” The Bible is filled with stories of sin’s collective consequences extending across generations, and the Christian understanding of the human person is rooted in mutual dependence. Those truths are not lost on CRT.

Compare the Christian response to another school of legal thought that is arguably more influential than CRT: Law & Economics. Put simply, this movement has shown the extent to which the function of our common law system aligns with economic principles. These insights have helped us design legal rules that promote economic efficiency, which is, generally, a good thing. But when it comes to putting a price on a human life, for example, Christians will (and should) start to squirm. When Ford decided not to fix the Pinto’s susceptibility to rear-impact explosions because paying jury verdicts for the ensuing deaths would be less expensive, that decision is tough for Christians to defend given our commitment to human dignity.

I have not seen many joint statements from Christian leaders making sweeping condemnations of Law & Economics. Such a condemnation, in my view, would also be imprudent.

Here’s why: for Christians, no theory of society captures reality more fully than the person of Jesus Christ. Resting secure in that knowledge, though, does not mean that Christians have nothing to learn from human efforts to make sense of the world. Especially when our churches still meet during what Martin Luther King Jr. called “the most segregated hour in Christian America,” it is unfortunate that those who train pastors chose to condemn a school of thought that has emerged from the lived experiences of our black and brown brothers and sisters. We should be listening, learning, and discerning truth – even when the truth is incomplete. CRT is not a comprehensive Christian theory of the world, nor does it aim to be. It is also not a reason to panic.

December 9, 2020 in Vischer, Rob | Permalink

Tuesday, December 8, 2020

What It Means (for Lawyers) to be Human

In his important new book, What It Means to Be Human, Carter Snead critiques expressive individualism through the lens of our embodiment and mutual dependence.  He focuses on issues of bioethics – abortion, assisted reproduction, and end-of-life concerns – and explains how “the virtues of acknowledged dependence” might be a corrective to the paradigm of the self-determining and self-sufficient individual. 

Snead looks to parenthood as the most powerful example of practices that “draw one’s gaze from inside toward the outside,” or as Michael Sandel described parenthood, as a “school of humility.”  Underscoring the “radical reorientation of one’s perspective as a parent,” Snead cites Steven Spielberg:

At the conclusion of his film Close Encounters of the Third Kind, Steven Spielberg’s protagonist leaves his family to join the aliens on their spacecraft to pursue his lifelong dream and obsession. In a documentary on the making of the film, Spielberg observed that he wrote this ending before he became a parent and “would never have made Close Encounters the way I made it in ’77, because I have a family that I would never leave.”

How does “acknowledged dependence” shape our understanding of the lawyer’s role?  Do we approach clients as pre-parenthood Spielbergs? Under the traditional view, the lawyer serves the client’s legal interests and suspends her own moral judgment regarding the client’s underlying goals.  Expressive individualism may find no stronger champion than Lord Brougham, for example, who famously remarked to the House of Lords in 1820 that an advocate “knows but one person in all the world, and that person is his client,” and that “to save that client by all means and expedients, and at all hazards and costs to other persons . . . is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

Today there is no shortage of examples of lawyers defining their clients’ interests as though they are self-defining, self-sufficient, fully autonomous beings.  From Enron’s counsel, to lawyers defending the Church from sexual abuse suits, to the Trump campaign’s lawyers lobbing wild accusations about conspiracies to steal the election, the profession could benefit from an immersion in the work of Sandel, Alasdair MacIntyre, Charles Taylor, and Snead.

Not that the work of translation hasn’t been going on.  Tom Shaffer, most notably, spent decades bringing the insights of an authentic anthropology to legal ethics conversations, as has David Luban, among others.  But it’s still an uphill climb.  In public bioethics debates, we fear any curtailment of expressive individualism, and in legal ethics, that fear is magnified because the lawyer is the agent, not the principal.  So we make assumptions about the client’s stance toward the broader world without ever unpacking those assumptions or inviting the client’s reflection on their substance.  Perhaps the client will jump aboard the expressive individualism train wholeheartedly, in which case the attorney must either come along for the ride or resign.  But it’s a conversation worth having. 

Facing the fact of our mutual dependence matters well beyond our debates over bioethics, and Carter Snead has provided a very important nudge to reflect on the assumptions that shape legal practice. 

December 8, 2020 in Vischer, Rob | Permalink

Tuesday, December 1, 2020

Eric Metaxas and the losing of the evangelical mind

The life of the mind has been an important part of my faith journey, and it grieves me to see how many Christians are susceptible to the wild conspiracy theories that are contributing to our growing inability to engage in rational debate.  My response to Eric Metaxas and other purveyors of the latest tall tales is here.  An excerpt:

Our minds are a gift from God. Like all good gifts, we are called to steward them wisely. As conspiracy theories infiltrate the church and compromise its witness, we can’t just roll our eyes as though we’re accommodating an embarrassing uncle who drops by for holiday dinners. The gospel speaks to the heart and the mind. If wild conspiracy theories find fertile ground among Christians, we shouldn’t just be scandalized; we should be motivated to reclaim the intellectual rigor of our faith.

December 1, 2020 in Vischer, Rob | Permalink

Friday, November 27, 2020

Thoughts on Catholic Diocese of Brooklyn v. Cuomo

I believe that the biggest threat we face as a nation is the growing political polarization that makes it very difficult to collaborate on the many pressing problems we face. One of the dimensions to this polarization is an overly simplistic perception that the Supreme Court is divided between “good” justices and “evil” justices, with those designations contingent solely on our political leanings. New rulings are weaponized by opposing camps and deployed in ways that lend further support to the good-versus-evil characterization.
With that preamble, I’ll offer an admittedly cursory, non-technical explanation of Wednesday night’s 5-to-4 Supreme Court ruling blocking enforcement of Governor Cuomo’s restrictions on attendance at religious services in New York. The majority’s analysis was not driven by an utter disregard of public health, and the dissent’s analysis was not driven by hostility toward religious liberty. There were two primary differences between the justices who joined the majority and those who wrote in dissent:
1) Timing: At the time of the ruling, the religious bodies objecting to the regulations were no longer subject to the rules that were the focus of their suits because the surrounding communities had shifted to less restrictive classifications based on COVID test positivity rates. The majority decided that this change did not make the case moot, as they could shift back to more restrictive classifications at any time. The dissenting justices believed that the Court should hold off on second-guessing public health authorities unless and until the conflict is real and pressing. (This is the reason that caused Chief Justice Roberts to dissent.)
2) Substance: Every justice agrees that, under the Constitution, the government cannot treat religious exercise worse than comparable secular activities. In the majority’s view, the fact that nearby liquor stores, acupuncture facilities, grocery stores, and bike shops could operate at full capacity while churches and synagogues faced restrictions suggests that Governor Cuomo’s order is constitutionally problematic. In the dissent’s view, the fact that lecture halls, concert venues, churches, and synagogues are all subject to the same occupancy restrictions suggests that religious exercise is not being disfavored. The justices disagree about the appropriate points of comparison.
When it comes to the operative background principles, there is much more consensus on the Court than most Americans would guess based on its portrayal in our political culture. To be sure, there are meaningful differences in justices’ views about how the Constitution should be interpreted. These differences matter. But each justice is committed to the rule of law and is doing their best to navigate very thorny issues.
The business model of the companies driving our economy, and the vote-boosting model of our elected officials, is based on drawing and keeping our attention, and polarization is a great engine for doing this. It is not healthy or helpful to take a clickbait approach to the rule of law – it’s not all a grand battle of good versus evil. We still have plenty to debate when it comes to Supreme Court rulings, but let’s be precise and particular when we disagree.

November 27, 2020 in Vischer, Rob | Permalink