Friday, May 14, 2021
A recent exchange on Twitter provides another fitting occasion to re-up this illuminating exposition of Justice William Brennan's "shadow theology" from a few decades ago: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Pa. L. Rev. 1049 (1992).
Friedlander situates Brennan as rejecting classical natural law jurisprudence even while invoking its "spirit":
Justice Brennan offers a distinctive approach to modern constitutional problems. To confront the necessities of the present he dispenses with the positivist tradition and looks further back into history. Rather than resuscitating the classical natural law tradition, he invokes its spirit. This approach creates its own difficult questions. Is any aspect of the law fixed or must all laws bend to conform to the given world? Can the "new jurisprudence" find answers in the social sciences as the old natural law jurisprudence found them in theology and philosophy? There is the new danger that Justice Brennan's jurisprudence masks itself in a tradition that is not its own, and that its principles are merely empty abstractions that hide a deep skepticism about the binding character of law.
Friedlander's exposition is an extended exploration of "a vacuum in [Brennan's] sociology." In particular, Friedlander studies Brennan's "precept of progress in the service of unity." Departing from the classical natural law tradition, Brennan's outlook was shaped by his perception of "the constitutional ideal of libertarian dignity protected through law." This dignity, to be sure, is the dignity of the individual, not one that reflects a classical natural law conception of the common good.
Friedlander notes Brennan's regular reliance on a 1964 ABA committee report: Miriam T. Rooney, Report of Committee on Comparative Jurisprudence and Legal Philosophy, 1964 A.B.A. Sec. Int'l & Comp. L. 195. In describing his own judicial outlook, Brennan ambiguously situates the "new jurisprudence" discussed in this 1964 report vis-a-vis "the philosophy of St. Thomas Aquinas." Here's Friedlander:
Justice Brennan confronts three distinct jurisprudential problems: a changing society, the legacy of positivism, and the inadequacy of positivist jurisprudence when confronted by social change. He is both attracted to and repelled by the model of law prior to the nineteenth century, when natural law theory was dominant. At that time "law was merged, perhaps too thoroughly, with the other disciplines and sources of human value." "Custom," says Justice Brennan, "was the cherished source of the common law."
Justice Brennan does not specify why custom is an inadequate grounding for law today. Is it because discontinuities in legal theorizing have left us with a legal inheritance in which precedent is uninformed by the value of custom, or because a changing society cannot rely upon custom even if it were contained in our constitutional law? Justice Brennan suggests the latter: "Just as we have learned that what our constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time; similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time."
Seeking wisdom and dismissing custom, Justice Brennan is not without other "sources of human value" upon which to draw. In both speeches, he quotes approvingly from a bar association report that traces the historical development of legal thought from positivism to sociological jurisprudence to the "New Realism" school and, finally, to a "new jurisprudence," which "[i]n a scientific age... asks, in effect, what is the nature of man, and what is the nature of the universe with which he is confronted .... Why is a human being important; what gives him dignity; what limits his freedom to do whatever he likes; what are his essential needs; whence comes his sense of injustice?"
Most interesting about this interrogative mode of jurisprudence is Justice Brennan's reaction to it. In two sentences remarkable in their tentativeness, he notes, "[p]erhaps some of you may detect, as I think I do, a return to the philosophy of St. Thomas Aquinas in the new jurisprudence. Call it a resurgence, if you will, of concepts of natural law-but no matter." This "new jurisprudence," like that of St. Thomas, is also in agreement with the Aristotelian and Platonic traditions.' In its concern for "seeing things whole ... [it] draws its validity from its position in the entire scheme of things." The answers to the posited questions are not discussed by Justice Brennan. The bar report from which Justice Brennan quotes does continue, however. It discusses two books based on a "Document... of the Holy Office ... , which underlines 'among the possible areas of harmonious cooperation with non-Catholic Christians, the joint vindication of ideas based on the natural law and the heritage common to all Christians.' "
Brennan's continued use of this report evidences one way in which important strands in American constitutional law—those represented by Brennan and Scalia, respectively—emerge out of the American Catholic experience of two New Jersey natives as filtered through post-WWII Catholicism and various camps surrounding Vatican II, Humanae Vitae, and so on. through the 60s, 70s, and 80s.
Another New Jersey Catholic perspective at work in the report came from the report's author, Miriam Theresa Rooney. Born in Charlestown and educated at Girls' Latin High School in Boston, Rooney was one of the first women law professors in the United States and the founding Dean of Seton Hall Law School. "An American Catholic original," as a Seton Hall biographical sketch describes Rooney, calls to mind now the first words of the title of Joan Biskupic's biography of Scalia, "American Original." At the time of Rooney's 1964 committee report, Brennan was captaining important Warren Court decisions and Scalia was practicing law in Ohio; Brennan was putting together a coalition for Griswold v. Connecticut while Scalia was starting a family.
Thursday, March 25, 2021
For this great feast of the Annunciation, two versions of Justice Scalia's oft-told story about the best lesson he learned as an undergraduate at Georgetown:
Perhaps the best lesson I ever learned here at Georgetown occurred during my oral comprehensive examination in my major (history) at the end of my senior year. My history professor was Dr. Wilkinson, a prince of a man. He was the chairman of the three-professor panel that examined me. And I did, if I may say so myself, a smashingly good job. As the time for the examination was almost at hand, Dr. Wilkinson asked me one last question, which seemed to me a softball. Of all the historical events you have studied, he said, which one in your opinion had the most impact upon the world? How could I possibly get this wrong? There was no obviously single correct answer. The only issue was what good answer I should choose. The French Revolution perhaps? Or the Battle of Thermopylae—or of Lepanto? Or the American Revolution? I forget what I picked, because it was all driven out of my mind when Dr. Wilkinson informed me of the right answer—or at least the right answer if I really believed what he and I thought I believed. Of course it was the Incarnation. Point taken. You must keep everything in perspective and not run your spiritual life and your worldly life as though they are two separate operations.
- Scalia, On Faith, "Away from the noise—making retreats" (1998 Georgetown)
Georgetown University was a very Catholic place when I was there. One of the best lessons I learned was in the course of my oral comprehensive exam in my major subject, history, at the end of senior year. I had done pretty darned well during all of the questioning, and at the end my history professor, Dr. Wilkinson, to whom I am ever indebted, asked me one last, seemingly softball question: If I had to pick a single event as the most significant in all the history I had studied, what would it be? I say it was a softball question because there obviously could not be any single correct answer. So I groped for what might be a good one. What should I say? The Battle of Thermopylae? No, the Battle of Lepanto. No, the French Revolution. No, the Grand Convention of 1787. I forget what answer I gave, but it was wrong. The right one, Dr. Wilkinson informed me, was the Incarnation. Well, of course. Point taken, and an unforgettable lesson learned.
- Scalia, On faith, "Moral Formation--the Character of Higher Catholic Education" (1994, Catholic University).
Friday, March 19, 2021
In his introductory text, Augustine's Quest of Wisdom, Vernon Bourke leads off Chapter XIII ("God and Society") with this long quotation from the twelfth book of Augustine's Literal Commentary on Genesis:
These are the two loves: the first is holy, the second foul; the first is social, the second selfish; the first consults the common welfare for the sake of a celestial society; the second grasps at a selfish control of social affairs for the sake of arrogant domination; the first is submissive to God, the second tries to rival God; the first is quiet, the second restless; the first is peaceful, the second trouble-making; the first prefers truth to the praises of those who are in error, the second is greedy for praise however it may be obtained; the first is friendly, the second envious; the first desires for its neighbor what it wishes for itself, the second desires to subjugate its neighbor; the first rules its neighbor for the good of the neighbor, the second for its own advantage; and (these two loves) make a distinction among the angels, the first love belongs to the good angels, the second to the bad angels; and they also separate the two "cities" founded among the race of men, under the wonderful and ineffable Providence of God, administering and ordering all things which have been created; the first (city) is that of the just, the second (city) is that of the wicked. And though they are now, during the course of time, intermingled, they shall be divided at the last judgment; the first, being joined by the good angels under its King, shall attain eternal life; the second, in union with the bad angels under its king, shall be sent into eternal fire. Perhaps, we shall treat, God willing, of these two cities, more fully in another place.
I don't know about you, reader, but I'm not sure I can act well from the first kind of love on Twitter. Too often and too easily it seems so much I see externally and experience internally is foul, selfish, aiming at control for the sake of domination, rivaling God, restless, trouble-making, greedy for praise, envious, aiming at subjugation of neighbor and self-advantage.
As today's feast day comes to an end, let us pause to bring to mind and treasure the silence of St. Joseph.
Friday, February 5, 2021
"Binding" precedent may be thought to conflict with judicial freedom. But does it?
Suppose a judge on a a three-judge panel must decide an appeal in a federal circuit court of appeals in which one panel cannot overrule another. On such a court, only the court sitting en banc can overrule a prior panel decision.
Now suppose that the appeal to be decided is an "easy case" because the correct resolution follows straightforwardly from a prior panel decision. A judge in this later case thinks that the binding precedent was wrongly decided. But she recognizes the precedent is controlling. Because she wishes to rule lawfully, she applies the wrong but binding precedent to resolve the case before her. The full court then takes the case en banc.
Is this judge now sitting en banc more or less free than she was while sitting on the three-judge panel? It depends on what judicial freedom amounts to.
If judicial freedom is the ability to choose between contrary outcomes, then the lawful judge is more free en banc than on the panel. There was only one lawful outcome on the panel. En banc she has a choice. She can overrule the previously binding precedent or she can leave it standing. On this understanding, judicial freedom and binding law stand in opposition.
But what if judicial freedom is the ability to render judgment according to law? On this understanding, the lawful judge is less free sitting en banc than on the panel. The judge may fail to render judgment according to law when sitting en banc. She might make a mistake about what the law requires. No such mistake was possible while the "binding" precedent controlled her choice on the panel. On this understanding, judicial freedom and law are mutually reinforcing. It is easier to render judgment according to law the more and more clearly the law binds.
Given the dominance of the conception of freedom as the ability to choose between contrary outcomes, one might be suspicious that there's something funny going on with the second conception of judicial freedom. But isn't the ability to render judgment according to law the kind of judicial freedom we have in mind when we think about "judicial independence"? When we say that judges should rule without fear or favor? When we laud judicial impartiality?
Thursday, December 3, 2020
What a fascinating few opening paragraphs in today's Washington Post:
The embryo that led to Molly Everette Gibson’s birth in October started its journey in 1992, when it was frozen and placed in a cryogenic freezer in the Midwest.
It remained in frigid hibernation until it was packed in a liquid nitrogen shipper in 2012 and sent to an embryo adoption facility via FedEx. In February, a fertility specialist thawed it and transferred it to the uterus of Tina Gibson, who had been praying for a baby for five years.
A viable pregnancy resulted 27 years after the embryo was frozen, setting what appears to be a record for the longest-frozen embryo known to have come to birth, according to research staff at the University of Tennessee Preston Medical Library. The baby beats the record set by her older sister, Emma Wren Gibson, who started as an embryo that was frozen for 24 years.
It seems as if "it" the embryo, and the resulting "viable pregnancy," and she "the baby" are all one and the same person.
Friday, November 20, 2020
Will Fr. James Martin, S.J., explain or withdraw his assertion that Justice Barrett voted "in defiance of Catholic pro-life teaching"?
Speaking of Twitter as an occasion or near occasion of sin, I see that I have not been the only one who has posted intemperately or injudiciously about the 6-3 order vacating the stay of execution for Orlando Hall. Fr. James Martin, S.J. singles out Justice Barrett's vote as made "in defiance of Catholic pro-life teaching." (See below.)
This is a grave charge. Will Fr. Martin explain his assertion or will he withdraw it?
What Catholic pro-life teaching forbade any of the Justices from vacating the district court's injunction? Did Fr. Martin even look into or try to understand the legal merits of the claim at issue?
According to SCOTUSBlog, the district court's injunction was based on the federal government not having a prescription for the lethal dose of sodium pentobarbital that it was to administer, which prescription is purportedly required by the federal Food, Drug, and Cosmetic Act. The federal government "argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs. It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription." Justice Barrett (along with Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kavanaugh, and Justice Gorsuch) apparently agreed with the government and voted accordingly.
The short reading for morning prayer today was Ephesians 4:29-32:
Guard against foul talk; let your words be for the improvement of others, as occasion offers, and do good to your listeners, otherwise you will only be grieving the Holy Spirit of God who has marked you with his seal for you to be set free when the day comes. Never have grudges against others, or lose your temper, or raise your voice to anybody, or call each other names, or allow any sort of spitefulness. Be friends with one another, and kind, forgiving each other as readily as God forgave you in Christ.
Reflecting on this reading made me go back and delete a reply I had sent earlier that morning on Twitter. And this was all after I had apologized for misunderstanding another person's posts about the same topic. So perhaps I'll lay off Twitter when it comes to responding to people criticizing Justice Barrett as having violated her faith by voting to deny relief in a federal execution. But some response remains warranted. So here it is.
Let's begin with how serious an accusation it is to assert that someone has violated her faith and well-formed conscience. The gravity of such a charge is not a decisive reason against leveling it. But it is reason to make sure one knows what one is talking about in doing so.
In this case, that is easy enough because Justice Barrett has done more than any other Justice to explain how she understands the relationship between Catholic teaching on the death penalty and what role Catholic judges may play in a legal system that imposes and carries out such sentences. That explanation appears in Catholic Judges in Capital Cases, 81 Marquette Law Review 303 (1998), co-authored with John Garvey.
I know from personal experience how helpful this article can be for thinking through the challenging issues that confront anyone who participates in some way in a legal system that carries out the death penalty even while believing the punishment immoral in almost all circumstances in which it is imposed in society today. I'm one of those people. And there are a lot of us.
I had to think about it when handed my very first case as a judicial clerk in my first job out of law school. It was a capital case with something like 17 issues, resulting in a bench memo of over 70 pages. (I was new and very much in need of an editor.) Because many recent law graduates serve as law clerks, and many jurisdictions impose the death penalty, every year there are law clerks in the same situation I found myself in. And when I can, I try to point them to this ACB/Garvey article. This is not because it answers every question one might have about every kind of cooperation with evil one might encounter. But it is careful, thorough, and attentive to orthodoxy.
Some of Justice Barrett's casual critics have clearly not done the reading. Which is a shame because one can learn a lot by engaging the Barrett/Garvey analysis on its own terms. In some places, the authors' conclusions are appropriately tentative and tempered by an awareness that not all circumstances can be accounted for properly simply by categorizing, for example, guilt phase vs. penalty phase, trial vs. appeal vs. collateral review. Roughly speaking, though, Barrett & Garvey conclude that Catholic judges "may sit on the guilt phase of capital cases--provided they withdraw before sentencing. They may handle appeals challenging convictions and (perhaps) even sentences. They may also engage in collateral review of cases where the defendant was sentenced to death." 81 Marq. L. Rev. at 345.
I won't repeat their analysis here, but will add only that by the time that any capital case gets to the Supreme Court, it has either already been through multiple layers of review, or there is some procedural bar if the claim is relatively new. The extent of material cooperation in such circumstances is thus typically lower than even the typical appellate or collateral review.
There is a danger of scandal, though. And this is another reason why Catholics who really ought to know better should be sure they understand what they're talking about before they risk contributing to scandal with casual condemnations of alleged infidelity to one's well-formed conscience.
Thursday, October 29, 2020
Although much has been made of Justice Barrett's originalism, it is more likely that her judicial departmentalism will matter much more. More specifically, I believe that Justice Barrett's Judicial departmentalism will be more important than her originalism in each case in which it matters, and that her judicial departmentalism will be operative in more cases than originalism will be.
Judicial departmentalism is best understood by way of contrast with judicial supremacy. Conventionally, judicial supremacy is the position that the Constitution means for everybody what the Supreme Court says that it means in resolving a case or controversy. Judicial departmentalism, by contrast, is the position that the Constitution means in the judicial department what the Supreme Court says that it means in resolving a case or controversy. Instead of treating judicial departmentalism as an alternative to judicial supremacy, then, we could also treat it as a form of bounded judicial supremacy. The boundaries around Supreme Court authoritativeness are the boundaries around the judiciary.
There is an affinity between originalism and judicial departmentalism insofar as originalism provides an account of what the Constitution means that does not necessarily depend on looking to what the Supreme Court has said. Originalism can therefore provide a reference point for determining whether existing judicial doctrine underenforces or overenforces the Constitution in a variety of ways. As I have previously argued, "[c]onstitutional originalism provides a standard outside of the Supreme Court's doctrine but inside the law that enables one to see how legislation may appear to overenforce when measured against judicial doctrine, but actually does not, because the judicial doctrine underenforces the Fourteenth Amendment as assessed from an originalist perspective."
Justice Barrett's prior academic writings do not explicitly adopt judicial departmentalism. But the concept is relatively new and still somewhat obscure. I first presented the idea publicly at a symposium at William & Mary Law School that I then left early to attend Justice Scalia's funeral. But Justice Barrett's prior academic writings reveal an openness to judicial departmentalism. And Barrett joins the Court after having studied the history and limits of the federal judicial power in greater detail than any other current Justice had studied it prior to joining the Court.
Barrett's scholarship recognizes limits on the authoritativeness of the Supreme Court's say-so in a variety of ways. For example, her scholarship supports skepticism that the Supreme Court possesses inherent supervisory rulemaking authority over other federal courts. And even more importantly, Barrett has explicitly distinguished originalism as a theory of law from originalism as a theory of adjudication. Because of this important and well-founded distinction, judicial implementations of originalism must always remain open to influence by some normative theory of adjudication in addition to a descriptive or prescriptive theory of law. And judicial departmentalism is a component of both a theory of law and a theory of adjudication. There is therefore very good reason to think that Justice Barrett will understand her role on the Supreme Court in self-consciously judicial departmentalist terms. This would provide a welcome contrast with the unselfconscious and often inconsistent judicial supremacy one more commonly encounters.
Wednesday, May 6, 2020
The Supreme Court will hear oral argument this morning in the consolidated cases of The Little Sisters of the Poor Saints. Peter and Paul Home v. Pennsylvania and United States v. Pennsylvania. I am cautiously optimistic that a Court majority will ultimately endorse some version of the interpretation of RFRA advanced by Michael Stokes Paulsen twenty-five years ago in A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249 (1995). I teamed up with him and a group of excellent attorneys here in Richmond (John P. O'Herron, John D. Adams, and Brian D. Schmalzbach) to submit a brief amici curiae applying "A RFRA Runs Through It" to this case. In something of a preview for oral argument, I discussed some of the key issues in the case with Marc DeGirolami and Mark Movsesian in a Legal Spirits podcast.
On a personal note, the unusual circumstances of today's telephonic oral arguments bring me back to the somber, sad circumstances of oral argument in the first Little Sisters of the Poor case at the Supreme Court. That argument took place March 23, 2016, approximately six weeks after Justice Scalia's February 13 death. His absence hovered over the proceedings. Curiously enough, the primary effect of Justice Scalia's absence was to transform a likely 5-4 win for the religious nonprofits into an 8-0 punt back to the lower courts.
On another personal note, I cannot help but think of the juxtaposition of the austere legalism of Supreme Court oral arguments with the gritty fight against COVID-19 that is happening right now in the Little Sisters' homes for the elderly poor across the country. Let us pray for the residents, the staff, and the Sisters. May the Holy Spirit accompany them and bring them peace and happiness.
-- "What happiness for us, to be a Little Sister of the Poor! Making the poor happy is everything …” (St. Jeanne Jugan)
Tuesday, May 5, 2020
Recent developments in Lighthouse Fellowship Church v. Northam, a fast-moving challenge to the application of Virginia's ban on gatherings over 10
National media recently began reporting on Lighthouse Fellowship Church v. Northam (E.D. Va.) after the U.S. Department of Justice filed a statement of interest supporting the church's challenge to the application of Governor Northam's orders banning gatherings of more than ten persons. The issue will be fully joined on Thursday, when Virginia will file its first detailed response. I'm still working my way through the filings, which should be of interest to anyone thinking hard about the way the issues raised by Marc's recent post about equality and church-closure issues. Here's a quick timeline with links:
April 5: Chesapeake Police issue criminal summons against Pastor Kevin Wilson in connection with 16-person worship service at Fellowship Baptist Church (seating capacity > 290 persons).
April 24: Fellowship Baptist Church files a complaint and motion for TRO and PI in Eastern District of Virginia.
May 1: Judge Wright Allen denies motion for TRO and preliminary injunction with 33-page opinion and order.
May 2: Fellowship Baptist Church files a motion for emergency injunction pending appeal.
May 3: Department of Justice files a Statement of Interest supporting Fellowship Baptist Church's motion for injunction pending appeal.
May 3: Virginia files notice of intent to respond by Thursday, May 7.
May 4: Judge Wright Allen takes motion for emergency injunction under advisement. Orders Virginia to respond by Thursday, May 7.