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.

Friday, November 20, 2020

ACB & Garvey on Catholic Judges in Capital Cases

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.

November 20, 2020 in Walsh, Kevin | Permalink

Thursday, October 29, 2020

Justice Barrett, judicial departmentalist

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.

October 29, 2020 in Walsh, Kevin | Permalink

Wednesday, May 6, 2020

Oral Argument this Morning in Little Sisters of the Poor Act II: A RFRA Runs Through It

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)

May 6, 2020 in Walsh, Kevin | Permalink

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.

May 5, 2020 in Walsh, Kevin | Permalink

Saturday, May 2, 2020

The rejection and unmasking of an uncreated order of values, together with "management technique at the service of the strongest"

In his essay, The Dead End of the Left: Augusto Del Noce’s Critique of Modern Politics, Carlo Lancelloti describes Del Noce's intervention into a debate between two well-known Catholic intellectuals of the time, one a representative of the "right" and another of the "left." Lancelloti includes an extended quotation from Del Noce, which I reproduce here not so much for the specific purposes that Del Noce or Lancelloti had in their writings, but because it arrestingly captures what has been happening at elite and not-so-elite universities in the United States for at least the last few decades:

If by “right” we mean faithfulness to the spirit of tradition, meaning the tradition that talks about an uncreated order of values, which are grasped though intellectual intuition and are independent of any arbitrary will, not even the divine one; and if by “left” we mean, on the contrary, the rejection not merely of certain historical superstructures but of those very values, which are “unmasked” to show their true nature as oppressive ideologies, imposed by the dominant classes in order to protect themselves, well, then it seems that in no other historical period has the left advanced so dramatically as during the last quarter of a century…. And yet, one has to say that Domenach is right: if by “right” we mean “management technique at the service of the strongest,” regardless of what ideologies are used to justify this management, we have to say that its victory has never been so complete, because it has been able to turn completely the culture of the left into its own tool.

May 2, 2020 in Walsh, Kevin | Permalink

Saturday, April 25, 2020

Looking to M.I.X. it up a bit? Try @frmillarmine.

Adrian's post provides an occasion to share this essay by this essay by Moorehouse F.X. Millar, S.J.: Bellarmine and the American Constitution, 95 Studies: An Irish Quarterly Review 361 (1930). Fr. Millar is an intriguing figure in the history of American Catholic thought about the U.S. Constitution.

Jesuit Trivia: Fr. Millar's nickname (which he seems not to have liked very much) was "Father Mixie." For an explanation of the transition from I.X. to F.X. in Millar's scholarly self-identification, and more on Millar's life and thought, see this extensive obituary by R.C. Hartnett, S.J., LXXXVII Woodstock Letters 135 (1958) ("For circulation among our only").

April 25, 2020 in Walsh, Kevin | Permalink

Thursday, April 23, 2020

Report: Common-good constitutionalism been spreading in Cambridge, Massachusetts for decades, maybe centuries

Some of the recent alarms about a flare-up of common good constitutionalism in Cambridge, Massachusetts may have underestimated its prior spread. Recent research in the U.S. Reports confirms that high legal authorities deployed common good constitutionalism over a century ago to overcome the resistance of Cambridge resident Henning Jacobson:

The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned." Railroad Co. v. Husen, 95 U.S. 465, 471; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U.S. 613, 628, 629; Thorpe v. Rutland & Burlington R.R., 27 Vermont, 140, 148. In Crowley v. Christensen, 137 U.S. 86, 89, we said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." In the constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of any one man, family or class of men." The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Commonwealth v. Alger, 7 Cush. 53, 84.

Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905)

Asked for comment on these findings, area law professors disagreed with this diagnosis of Mr. Jacobson's losing liberty interest. One said this diagnosis mistakes common good constitutionalism for standard police powers analysis rooted in social contract theory. Another claimed compatibility with, and ultimate justification in, John Stuart Mill's "harm principle." A third commented cryptically, "Harlan was no Hercules, but this is the Constitution in 2020." 

April 23, 2020 in Walsh, Kevin | Permalink

Wednesday, April 15, 2020

The Constitution, Kulturkampf, Friedlander, and Vermeule

A correspondent recently reminded me of a 2013 blog post that highlighted a 1992 student note analyzing Justice Brennan's jurisprudence: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Penn. L. Rev. 1049 (19920.

In this note which is "of a quality that far surpasses most faculty-produced scholarship," Joel Friedlander "applies [Philip] Rieff's theory of kulturkampf to Justice Brennan's jurisprudential transition from Roth to Pacifica." It is an eye-opening exercise.

Perhaps of most relevance to the recent wrangling over Adrian Vermeule's anti-originalist Atlantic essay is Friedlander's description of cultural conservatives engaged in the cultural warfare that encompasses but exceeds "the longstanding jurisprudential debates between origirialism and non-originalism or between natural law and positivism." These cultural conservatives, Friedlander contends, are "largely constrained by their positivism, if not by their originalism."

If Friedlander is correct, then one can understand part of the alarm sounded in response to Vermeule's essay. If the jurisprudential debates are but one component of a broader kulturkampf in which what is at stake is "the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion," then the cultural conservatives' removal of their self-imposed constraint of legal positivism should be of concern to those on the other side from them of this kulturkampf.

Contrary to the framing of both Vermeule's essay and the responses to it, more fundamental than the debate between originalism and nonoriginalism (whatever that is) is a debate between legal positivism and natural law as each is taken to undergird our constitutional order. The problem may be not that we're all originalists now, but that we're all legal positivists now. If that's right, then we can't begin to have the debate we ought to be having.

April 15, 2020 in Walsh, Kevin | Permalink

Friday, April 3, 2020

Centesimus Annus ¶ 44 and the U.S. Constitution

I've been working on multiple-choice questions for the University of Richmond Law School one-Ls in my Constitutional Law class this semester. Inspired by Adrian Vermeule's "Beyond Originalism" to think more deeply about the relationship between U.S. constitutionalism and Catholic Social Teaching, here's a multiple-choice question for the broader universe of MOJ readers.

* * *

Four key commitments of the Constitution of the United States of America are (1) popular sovereignty, (2) writtenness, (3) federalism, and (4) separation of powers. Which, if any, of these key commitments of American constitutionalism does Catholic Social Teaching endorse as an essential aspect of a sound theory of the State?

A. Popular Sovereignty

B. Writtenness

C. Federalism

D. Separation of Powers

E. All four.

* * *

Continue reading

April 3, 2020 in Walsh, Kevin | Permalink

Wednesday, November 13, 2019

"[I]f burning incense to the Founders will help us advance our cause today, I'm fine with it."

Strike two for Sohrab Amari? Actually, just another wild pitch. First the beanball at David French, now a heater inside and low for Mark David Hall. Who is on whose team here?

Screenshot 2019-11-13 09.38.50

Fortunately, Ahmari has already walked back any idolatry-accusing implication of his "burning incense" tweet. Ahmari didn't mean to say Hall was an idolater, he clarified, but that he was willing to join Hall in paying civic reverence. 

Screenshot 2019-11-13 09.36.32

This clarification in place, we can think about a hard question surrounding a stance on which Ahmari, French, Hall, and many others agree. That stance is that it is appropriate to pay some civic reference to the Founders. A hard question about it: How do we establish and maintain appropriate boundaries around this civic reverence?

Suppose, for example, you are as anti-Jefferson as Ahmari and I are. It only makes sense that you would make your anti-Jeffersonian case by reference to Alexander Hamilton (as Ahmari has) or John Marshall (as I have). One might even try to rally people around a symbol of one aspect of our current constitutional order in which one set of powerful American Catholics  is positioned over the next decade or so to repair damage done by other powerful American Catholics in the past several decades.

We all need to make sure, though, that whatever-the-word-is-for-appropriate-filiopietism does not slip into idolatry. Civic reverence must be subordinated to reverence for the one true God. And it is here that things can be exceedingly tricky in a polity in which "law is king." With that function spoken for in the realm of civic orthodoxy, what about priest and prophet?

To simplify, perhaps oversimplify, Ahmari's exercise of a prophetic function appeared to cast Hall in the role of priest for an idolatrous cult of the Founders. Ahmari then clarified that he meant paying reverence of a different sort. This is very challenging. How, if at all, can we maintain a prophetic stance from the point of view of true reverence, while also performing and policing priestly functions in the subordinate realm of maintaining civic orthodoxy?

November 13, 2019 in Walsh, Kevin | Permalink