Mirror of Justice

There they go again ... Vermeule & Casey on Pryor in Ohio

There they go again. Law professors Adrian Vermeule and Conor Casey have co-authored an impressively lengthy, effectively footnoted, and aptly titled "Argument by Slogan" piece up at Harvard JLPP's Per Curiam. Its rhetorical framing brings to mind a critical and pointedly understated observation that Professor Richard Helmholz recently made in Marching Orders. In his largely positive review at First Things of Vermeule's compact call to arms, Common Good Constitutionalism, Helmholz expressed surprise at "the harshness of debate in this area of the law," and described Vermeule's outlook as that of one engaged in "a no-holds-barred sort of contest."  "It does seem a shame," Helmholz observes, "that the argument about constitutionalism has become as shrill as it has."

Helmholz is likely right about the shrillness being a shame; he is definitely right about the shrillness being shrill. Consider how Vermeule and Casey frame their response to the published version of Judge William Pryor's address to the Federalist Society’s 2022 Ohio Chapters Conference, Against Living Common Goodism:

• "Judge Pryor's advocacy of public meaning originalism is infected by a horror of judgment—a deep-seated fear that absent originalism, constitutional interpretation will collapse into a moral free-for-all where judges arbitrarily inject personal preferences into law." [p. 4]
• "In the end, Judge Pryor's core commitment is no more than animus against Justice Brennan, which does not by itself yield anything close to a coherent view. Enmity is not a theory." [p. 4]
• "To understand Judge Pryor's commitments, one must begin with the animus that galvanizes his argument." [p. 5]
• "The consequence of this core enmity is simple: Judge Pryor's argument fails if, and to the extent that, it fails to advance a methodological argument that would exclude constitutional interpretation of which Brennan could heartily approve. If Pryor has failed even to exclude Brennanism, he has achieved nothing. And as we will see, his argument in fact does nothing at all to exclude Brennanism, and necessarily lacks the theoretical resources to do so. This is because Pryor's arguments suffice only to establish thin originalism, not thick originalism; and thin originalism is entirely compatible with Brennanism."
• "In the end, Judge Pryor's core commitment is no more than an ill-defined animus against a specific style of jurisprudence, Justice Brennan's style. But brooding animus does not make for clarity of thought. Indeed, as often happens, the passion overwhelms the argument and turns it into the very thing it aims to destroy. ... Enmity is not a theory. Slogans are not arguments." [p. 19]

Just so. 

If one wishes to take seriously the ideas at issue instead of being distracted by the framing and motivational attributions, there's not much one can do about this rhetorical state of affairs in the short term. One can attempt to absorb or deflect, though, and then at some other time put forward a more positive vision. So for now, I'll just gesture toward that famous debater's trick from the Gipper and combine it with the professors’ favored rhetorical technique of repetition: There they go again.

The reality of the Annunciation, the angel Gabriel, and the injustice of the Ukraine invasion

Today's Feast of the Annunciation is both somber and hopeful. Pope Francis will lead an Act of Consecration of Russia and Ukraine to the Immaculate Heart of Mary. We should accept the invitation he has extended to all the faithful to join him in praying this prayer:

O Mary, Mother of God and our mother, in this time of trial we turn to you. As our mother, you love us and know us: No concern of our hearts is hidden from you. Mother of mercy, how often we have experienced your watchful care and your peaceful presence! You never cease to guide us to Jesus, the prince of peace.

Yet we have strayed from that path of peace. We have forgotten the lesson learned from the tragedies of the last century, the sacrifice of the millions who fell in two world wars. We have disregarded the commitments we made as a community of nations. We have betrayed peoples’ dreams of peace and the hopes of the young. We grew sick with greed, we thought only of our own nations and their interests, we grew indifferent and caught up in our selfish needs and concerns.

We chose to ignore God, to be satisfied with our illusions, to grow arrogant and aggressive, to suppress innocent lives and to stockpile weapons. We stopped being our neighbor’s keepers and stewards of our common home. We have ravaged the garden of the earth with war, and by our sins we have broken the heart of our heavenly Father, who desires us to be brothers and sisters. We grew indifferent to everyone and everything except ourselves. Now with shame we cry out: Forgive us, Lord!

Holy Mother, amid the misery of our sinfulness, amid our struggles and weaknesses, amid the mystery of iniquity that is evil and war, you remind us that God never abandons us, but continues to look upon us with love, ever ready to forgive us and raise us up to new life. He has given you to us and made your Immaculate Heart a refuge for the church and for all humanity. By God’s gracious will, you are ever with us; even in the most troubled moments of our history, you are there to guide us with tender love.

We now turn to you and knock at the door of your heart. We are your beloved children. In every age you make yourself known to us, calling us to conversion. At this dark hour, help us and grant us your comfort. Say to us once more: “Am I not here, I who am your Mother?” You are able to untie the knots of our hearts and of our times. In you we place our trust. We are confident that, especially in moments of trial, you will not be deaf to our supplication and will come to our aid.

That is what you did at Cana in Galilee, when you interceded with Jesus and he worked the first of his signs. To preserve the joy of the wedding feast, you said to him: “They have no wine” (Jn 2:3). Now, O Mother, repeat those words and that prayer, for in our own day we have run out of the wine of hope, joy has fled, fraternity has faded. We have forgotten our humanity and squandered the gift of peace. We opened our hearts to violence and destructiveness. How greatly we need your maternal help!

Therefore, O Mother, hear our prayer.

Star of the Sea, do not let us be shipwrecked in the tempest of war.

Ark of the New Covenant, inspire projects and paths of reconciliation.

Queen of Heaven, restore God’s peace to the world.

Eliminate hatred and the thirst for revenge, and teach us forgiveness.

Free us from war, protect our world from the menace of nuclear weapons.

Queen of the Rosary, make us realize our need to pray and to love.

Queen of the Human Family, show people the path of fraternity.

Queen of Peace, obtain peace for our world.

O Mother, may your sorrowful plea stir our hardened hearts. May the tears you shed for us make this valley parched by our hatred blossom anew. Amid the thunder of weapons, may your prayer turn our thoughts to peace. May your maternal touch soothe those who suffer and flee from the rain of bombs. May your motherly embrace comfort those forced to leave their homes and their native land. May your sorrowful heart move us to compassion and inspire us to open our doors and to care for our brothers and sisters who are injured and cast aside.

Holy Mother of God, as you stood beneath the cross, Jesus, seeing the disciple at your side, said: “Behold your son” (Jn 19:26). In this way, he entrusted each of us to you. To the disciple, and to each of us, he said: “Behold, your Mother” (Jn 19:27). Mother Mary, we now desire to welcome you into our lives and our history.

At this hour, a weary and distraught humanity stands with you beneath the cross, needing to entrust itself to you and, through you, to consecrate itself to Christ. The people of Ukraine and Russia, who venerate you with great love, now turn to you, even as your heart beats with compassion for them and for all those peoples decimated by war, hunger, injustice and poverty.

Therefore, Mother of God and our mother, to your Immaculate Heart we solemnly entrust and consecrate ourselves, the church and all humanity, especially Russia and Ukraine. Accept this act that we carry out with confidence and love. Grant that war may end and peace spread throughout the world. The “fiat” that arose from your heart opened the doors of history to the Prince of Peace. We trust that, through your heart, peace will dawn once more. To you we consecrate the future of the whole human family, the needs and expectations of every people, the anxieties and hopes of the world.

Through your intercession, may God’s mercy be poured out on the earth and the gentle rhythm of peace return to mark our days. Our Lady of the “fiat,” on whom the Holy Spirit descended, restore among us the harmony that comes from God. May you, our “living fountain of hope,” water the dryness of our hearts. In your womb Jesus took flesh; help us to foster the growth of communion. You once trod the streets of our world; lead us now on the paths of peace. Amen.

None of this makes any sense, of course, if the only reality in this world is material reality. But materialism is so ingrained, primarily as a practical rather than speculative stance, because our spiritual senses have been deadened and dulled. Perhaps this Feast of the Annunciation can be an occasion for a renewed commitment to prayer for the grace of enlivened and sharpened spiritual senses.

As a matter of "intellectual engagement," a good place to begin is with the reality of spiritual reality. This is where Frank Sheed begins in Theology for Beginners. He relates an exchange that a Catholic Evidence Guild member had with "a materialist, who asserted the the idea of justice was the result of a purely bodily activity, produced by man's material brain":

Speaker: How many inches long is it?

Questioner: Don't be silly, ideas have no length.

Speaker: O.K. How much does it weigh?

Questioner: What are you doing? Trying to make a fool of me?

Speaker: No. I'm taking you at your word. What color is it? What shape?

[Sheed continues:] The discussion at this point broke down, the materialist saying the Catholic was talking nonsense. It is nonsense, of course, to speak of a thought having length or weight or color or shape. But the materialist had said that thought is material, and the speaker was simply asking what material attributes it had. In fact, it has none, and the materialist knew this perfectly well. Only he had not drawn the obvious conclusion. If we are continuously producing things which have no attribute of matter, it seems reasonable to conclude that there is in us some element which is not matter to produce them. This element we call spirit.

Oddly enough, the materialist thinks of us as superstitious people who believe in a fantasy called spirit, of himself as the plain blunt man who asserts that ideas are produced by a bodily organ, the brain. What he is asserting is that matter produces offspring which have not one single attribute in common with it, and what could be more fantastic than that? We are the plain blunt men, and we should insist on it.

Occasionally a materialist will argue that there are changes in the brain when we think, grooves or electrical discharges or what not. But these only accompany the thought; they are not the thought. When we think of justice, for instance, we are not thinking of the grooves in the brain; most of us are not even aware of them. When I say that mercy is kinder than justice, I am not comparing mercy's grooves with the stricter grooves of justice.

Our ideas are not material. They have no resemblance to our body. Their resemblance is to our spirit. They have no shape, no size, no color, no weight, no space. Neither has spirit, whose offspring they are. But no one can call it nothing, for it produces thought, and thought is the most powerful thing in the world—unless love is, which spirit also produces.

Let us consider this passage in light of today's Act of Consecration. The category of spiritual reality is necessary to make sense of it. Without this category, we would have no adequate way to conceive of the reality of the Annunciation itself, of the angel Gabriel, or of the injustice of the Ukraine invasion. Each of these events, persons, or states of affairs is real. Each only makes sense as real in light of spiritual reality. As an event in the material world, the Annunciation was manifest through the appearance of the angel Gabriel to Mary. But what is an angel? What does it mean for a purely spiritual creature to "appear"? What was announced in the Annunciation? None of this makes any sense, and there is no possibility of salvation through the Incarnation, Life, Death, and Resurrection of Jesus Christ, unless spiritual reality is real reality.

And now we return to this day, March 25, 2022. Spiritual reality grounds the claim that the injustice of Russia's invasion of Ukraine is real injustice. The act of invasion was the act of a real vice, of objectively disordered human will. Again, something important is missing if we think of justice and injustice as simply subjective opinions lacking any basis in reality. Yet if the only reality is material reality, then that's where we are.  

Mary, Queen of Angels, pray for us.

A Reasonable Hope for Dobbs: Negate Roe's Negation of Prenatal Personhood

I was privileged over the last few days to participate in the 21st annual Fall Conference of the deNicola Center for Ethics and Culture at Notre Dame. What a gift to the Church and the Academy this Center and its activities are. I hope many people can watch the talks and discussions as they appear on the deNicola Center's YouTube channel. (If you watch just one panel, it should be "The Dignity of the Sexed Body: Asymmetry, Equality, and Real Reproductive Justice," featuring Erika Bachiochi, Abigail Favale, and Leah Libresco Sargeant. If a whole panel is too much and you want to see just one (non-plenary) talk, then ub this Year of St. Joseph, you have to go with Elizabeth Lev's visually and spiritually inspiring talk on depictions of St. Joseph in art as part of "The Dignity of Saints" presentation.)

The original title of my presentation was "Unwinding the Anti-Magisterium in the Supreme Court's Abortion Opinions." This promised too much for a talk that was to be between 18 and 20 minutes long, so I changed it to "Unwinding the Anti-Magisterium in Dobbs v. Jackson's Women's Health." (I was also pleased that this narrowed version clocked in at 18:59.) 

Because this presentation was on the undercard, no video recording of it will appear on YouTube. An audio recording (of my talk only, not of others on my panel or of the Q&A) is available here . A .pdf version of my slides is available here.

The talk is pitched to the audience of people attending a conference entitled "I Have Called You by Name: Human Dignity in a Secular World." Although discussing the law (accurately, I hope), it is not directed toward an audience of legal specialists. 

The bottom line of my reasonable hope for Dobbs is on slide 30/32: "Even if the Court does not affirm
prenatal personhood, it should negate Roe’s negation of prenatal personhood." 

The only thing I'd add at this point is that second point on slide 31/32 about nonjusticiability as an antidote to the abortion (anti-)magisterium is misleading. It says "Take the stance that the Court lacks judicially manageable standards to replace its perception of personhood with Congress’s or state governments’ perceptions." What I meant to say, instead, is that the Court should recognize that it lacks judicially manageable standards to put in place its perception of personhood in preference to Congress's or state governments' perceptions (with the implicit qualifier that these perceptions need to be reasonable in order to be acceptable).

An early, optimistic assessment of United States v. Texas

Earlier today the United States filed a complaint against Texas in the Austin Division of the United States District Court for the Western District of Texas. The complaint seeks a declaratory judgment that the Texas Heartbeat Act is unconstitutional in its entirety, along with "[a] preliminary and permanent injunction against the State of Texas—including all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8—prohibiting any and all enforcement of S.B. 8."*

This complaint is a move I've been waiting for since first analyzing the jurisdictional and procedural complications posed by the Texas Heartbeat Act. It's not without its risks to the Biden Administration, but inaction would have been even worse. In a Prawfsblawg comment last Friday morning, I observed that "Texas does not enjoy sovereign immunity in suits brought by the United States. If the United States itself can develop the grounds for injunctive relief against Texas, sovereign immunity would not be a barrier." If the United States wanted to make a particularly forceful claim for attention, I suggested the potential for filing directly in the original jurisdiction of the Supreme Court of the United States. I noted the Court's 1892 decision allowing another case called United States v. Texas to proceed in the Court's original jurisdiction and pointed interested readers to James E. Pfander's important article "Rethinking the Supreme Court's Original Jurisdiction  in State-Party Cases." Those are still good places to start in diving in to some of the jurisdictional issues. Now that we have a complaint to focus on, though, it's better to begin with that.

There are three counts in the portion of the complaint labeled "Claims for Relief":

Count I (Supremacy Clause--Fourteenth Amendment) asserts that "S.B. 8 violates the Fourteenth Amendment of the U.S. Constitution, as elucidated by the Supreme Court in Roe and Casey, by depriving women of the ability to obtain a pre-viability abortion in most cases. S.B. 8 therefore is invalid under the Fourteenth Amendment and the Supremacy Clause." ¶ 82.

Count II (Preemption) contends that "S.B. 8 is preempted by federal law—including the statutes and regulations outlined [earlier in the complaint]—to the extent it prohibits certain pre-viability abortions that federal agencies are charged with facilitating, funding, or reimbursing." ¶ 87. 

Count III (Violation of Intergovernmental Immunity) states that "S.B. 8 directly regulates the activities of the federal government and its contractors, grantees, and nongovernmental partners. S.B. 8 therefore violates the federal government’s intergovernmental immunity and is invalid in such applications." ¶ 91. 

The complaint raises a bevy of complex and novel jurisdictional, procedural, and remedial issues, not to mention the high stakes of the substantive law at issue.

Those high stakes are perhaps the best place to start in analyzing this complaint. This sovereign v. sovereign lawsuit raises the stakes for the Supreme Court's consideration of the ongoing validity of its abortion precedents. The viability line of Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey was already likely to be swept away in Dobbs v. Jackson Women's Health Organization. By filing United States v. Texas, the Biden Administration has raised the stakes even higher than they already were in Dobbs. My hopeful assessment is that the federal government's lawsuit today makes a broad decision Dobbs at least a little more likely than it had been. A decision that leaves the substantive constitutional law of abortion unclear as it applies to laws other than the 15-week ban at issue in Dobbs has always been undesirable for the Court. Assuming that a majority of the Justices already recognizes the unsoundness of Roe and Casey, one contributing factor leading to that conclusion is the perception that umpiring abortion laws has undermined the Court as an institution. With a presidential administration and one of the two major political parties already primed to attack the Court for the reversal of Roe and Casey, the Court may as well do its best to leave the field decisively. The way to do that is to acknowledge that state abortion restrictions are justified as extending the protection of the laws to unborn persons within their respective jurisdictions, and the federal judiciary has no judicially manageable standard by which it can displace the states' treatment of unborn persons as Fourteenth Amendment persons. Nor can the federal government by fiat simply render unborn persons as nonpersons by hiding behind Roe's erroneous determination that Fourteenth Amendment personhood definitively does not begin until birth.

As for United States v. Texas, I need to do more research and analysis, but I'm inclined to think now that (1) this suit by the federal government directly against the state will make it to a merits determination on at least one count (with Count I being the most likely), and (2) the federal government will lose on all counts whether or not the merits are reached on any of them.

I hope to have more to say in coming weeks as I and others dig deeper into the alluring complexities of United States v. Texas, but that's all I have for now.

* (S.B. 8 is what the complaint calls the Texas Heartbeat Act even though it's now an enacted law and not just a Senate Bill. This kind of rhetorical move is common in litigation like this. One way to form a quick assessment of the likely outlook of someone writing about this Texas law is to see what term they use to describe it.)

Friedlander's illumination of the shades of Brennanism & a gesture toward Brennan's Rooneyism

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.

Scalia on the best lesson he learned at Georgetown

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).

St. Augustine on the two loves and their corresponding stances toward social affairs

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.

Judicial freedom, binding precedents, and en banc review — a comparison and question

"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?

Was Molly ever an embryo?

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. 

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.