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, April 20, 2007

PBA ruling: the Political Dimension

By Rob Vischer

Over at SCOTUSblog, my colleague Teresa Stanton Collett comments on the still-unresolved issue of the proper standard of review for facial challenges to abortion statutes.  At Balkinization, Marty Lederman criticizes as paternalistic the "protect women" rationale employed by the majority in Gonzales v. Carhart.  (I'm curious whether all pro-lifers embrace this aspect of the ruling or fear that it dilutes the sanctity of life as the overriding rationale of the movement.)

On the political front, I wonder whether the Democratic presidential candidates would have toned down their condemnation of Gonzales v. Carhart if the ruling had been issued after the primaries.  Given that PBA bans enjoy broad public support (see table 4) and seem to occupy the long sought-after "middle ground" of the abortion wars, I would have hoped that Obama, Clinton, and Edwards would not have been so quick to apply such apocalyptic rhetoric to the ruling.  At the very least, is it too much to expect our legislative leaders not to condemn rulings upholding a statute for which they voted?

It had to happen . . .

By Rick Garnett

Thanks to the Philadelphia Inquirer (which characterizes as "activist" a decision that declines to invalidate a measure which has always enjoyed broad and bipartisan support):

I'll forego my lament about the "last acceptable prejudice" .  And, what's irritating about the cartoon is not only its claim that it is as Catholics -- i.e., because they are Catholics, and not because they think, as intelligent and engaged lawyers, that the Constitution does not (and, of course, it does not) disable legislatures entirely from regulating a particularly gruesome abortion procedure  -- that the five Justices who voted to uphold the ban.  What is, for me, most striking (and demoralizing) about this cartoon (and about similar "chill wind blowing from Rome" cartoons, blog posts, op-eds, that are already all over the web) is that it suggests something very depressing about the state and future of debate about moral questions.

It is, increasingly, thought to be enough to discredit an argument or position -- any argument or position -- merely to note that the person who makes it is a religious believer, and to write off any moral argument with which one disagrees as "religious."  (This practice, of course, does not run both ways:  arguments against torture, the death penalty, race discrimination, and income inequality are "secular"; arguments against partial-birth abortion or the creation of embryos for research are "religious.")  It appears, increasingly, that arguments whose trajectory is not in line with the standard liberal / autonomy / choice line are not only rejected, but declared not to be permissible arguments. 

Even in Justice Ginsburg's dissent, she took the time to complain that there was something improper, and threatening, about the majority's use of words like "abortion doctor" and "unborn child"; but, of course, the use of these words represents an argument.  To rule out the words is to rule out, as illegitimate, the argument they reflect.

Gonzales v. Carhart: “Denying the Right to Choose” or “Denying the Right to Live”

By Robert John Araujo, SJ

I would like to thank the various contributors to the discussion on Gonzales v. Carhart, the recent Partial Birth Abortion case decided this past Wednesday. I need to study the opinions in greater detail, but it appears that some members of the Court are beginning to consider in a public forum the nature of the object who always suffers from any abortion, namely a young human life. I am particularly grateful to Michael Scaperlanda for posting the link to his article co-authored with John Breen. Their essay raises this important question that the dissenters in Gonzales v. Carhart astutely avoid.

The decision in Gonzales v. Carhart will be discussed for some time to come, and I think it will be a major issue debated by those seeking public office in the Presidential and Congressional elections of next year. Major newspapers, like the New York Times [HERE] and the Boston Globe [HERE], through editorials, are already commenting on the decision probably with the desire of helping to direct and influence the inevitable future debate.

My purpose in writing today is to comment on some of the problems with the New York Times editorial. The first issue involves an acknowledgement on how the Times influences the nature of this important debate: it’s all about “a woman’s right to make decisions about her health.” If that were the issue that the decision in Gonzales v. Carhart was about, the Times might be justified in its conclusion that the decision is fundamentally dishonest. But the decision is not fundamentally dishonest because it demonstrates that the controversy involves much more than “a woman’s right to make decisions about her health.” It involves the lives of millions of children who have been killed by abortion. Since Roe was decided in 1973, it is estimated that at least forty million “legal” abortions have been performed in the United States. This means that forty million children have had their lives snuffed out by the legal fictions established and sustained by Roe.

The Times also expresses its alarm about the undermining of judicial precedent by “gutt[ing] a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings.” I am curious to know which ones the Times has in mind? It probably does not have in mind the failure to follow judicial precedent when Lawrence gutted Bowers.

The Times then argues that the majority opinion in Gonzales v. Carhart severely erodes the requirement of Roe that “all abortion regulations must have an exception to protect a woman’s health.” In offering this interesting interpretation of Roe, the Times also avoids the question the majority in Roe evaded, namely: what is the status of the fetus? If the fetus is a person, then there would be due process issues for protecting the life of the fetus as Justice Blackmun acknowledged in a footnote. But this crucial—yes, vital—question of the personhood of the fetus was sidestepped; consequently, it would be improper to criticize the Gonzales v. Carhart majority for severely eroding “rights” that are the fiction of the faulty judicial reasoning that underpins Roe. In this context, we should recall the dissent of Justice Byron White in the companion case to Roe, Doe v. Bolton, in which he warned that the majority’s decision was not really sound judicial reasoning but “an exercise of raw judicial power.” If the Times were in fact concerned about the severe erosion of legal reasoning and the rule of law, it might have considered the concerns expressed by Justice White. But, it did not.

In a tone suggesting that the majority decision is sexist (“these five male justices felt free to override the weight of medical evidence presented”), the Times continues its assertion that the decision was a judicial ratification of “the politically based and dangerously dubious Congressional claim that criminalizing the … [Partial Birth Abortion method] would never pose a significant health risk to a woman.” In presenting this claim that follows the script written by Justice Ginsburg, the editorial board relies on some unspecified “finding” attributed to the American College of Obstetricians and Gynecologists. Absent from the Times presentation and the dissent of Justice Ginsburg, however, are the pressing and important views of the American College of Pediatricians [HERE] which address the significant health risks to the fetus—or the child, if you prefer.

I search for evidence that the majority, moreover, considers women as “flighty creatures who must be protected by men.” But any kind of evidence supporting the take of the Times editorial eludes me.

A final point necessitating some discussion is the Times harsh criticism of the Bush administration and “other opponents of women’s reproductive rights” for the “big political victory they were hoping to get from the conservative judges Mr. Bush has added to the bench.” For the Times, this “political victory” erodes the court’s credibility, judicial integrity, and the rule of law. One could just as easily make the claim that Roe did precisely that, but then others, such as Justice White, have already pointed this out thirty-four years ago. But, following the Times’ logic, one could then argue that Stenberg and Lawrence were “political victories” which undermined the rule of law and judicial integrity. Perhaps the Times would counter by suggesting that those well reasoned opinions were necessitated by the dicta in Casey, which stated that at “the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life…”?

I believe that the debates begun in Roe and continued in Gonzales v. Carhart will persist. If my prediction is correct, it would be most helpful if the powerful news organs that have a strong influence on how the members of the public understand what is at stake in these important political debates present their points of view with objective and evenhanded analyses that avoid the kind of inflammatory rhetoric and inferior reasoning contained in the Times editorial.    RJA sj

Thursday, April 19, 2007

TSA and the Rule of Law

By Patrick McKinley Brennan

I've been on the TSA Watch List for years.  I know all about not being able to check in at home or at the curb or at the kiosk, the long lines and rude questions, the shuntings from one counter to another, the super-scrutinies, the wonderings out loud about whether I'll able to provide the "documentation" they need, guessing what the required documentation will be this time, the ransacking of my luggage . . . .  It's all too familiar.  I've even had lost luggage, but until now i never occurred to me that the Bush Administration might be behind the disappearance.  But that's probably because, for good or ill, I've never spoken publicly against the Bush administration.  (I'm not saying I couldn't come up with something to say).  Why am I, Patrick Brennan, not free to fly without interference?  I'd be tempted to say that I'm on the Watch List is because of my association with MOJ, but I've been on the Watch List longer than I've been on MOJ.  I have spoken in favor of the Church, however.  Will that do it?  Perhaps speech has nothing to do with it and it's sufficient that I'm a Patrick Brennan?  I've done everything possible to get off the list.  I do have the consolation of a letter telling me that agency's decision on my request to be removed from the List is final and, therefore, appealable to the U.S. Court of Appeals.  The special beauty of the letter, though, is that it doesn't tell me what the agency decided, not even a clue.  I'm still on the list, that's for sure -- but the letter doesn't even admit that I was ever on the list to begin with.

Just one story.  One time, several years ago, I was noticing wide discrepancies in the TSA agents' practices regarding travelers' shoes.  To some people they said, "You are required to remove your shoes."  To others they said, "We recommend that you remove yours shoes."  To still others, "No need to remove your shoes."  Sure enough, not all shoes are created equal, but that wasn't the point.  Wanting to know more about what the point was, when told that I "must" remove my shoes, I said, "But not everybody is being told to remove their shoes."  Answer: "Everybody has to remove their shoes."  Brennan: "But I read the TSA rules, and that's not what they say."  Answer (after a long, anguished pause):  "You can't have read the rules.  They're not written down anywhere."  Q.E.D.   

 

Never Get Out'a the Boat

By Michael Scaperlanda

In the right hand column, I have posted an article Never Get Out'a the Boat:  Stenberg v. Carhart and the Future of American Law, which I co-authored with MOJ friend, John Breen.  This article, which Connecticut Law Review recently published, concludes "Do we turn our backs on civilization and head further into the bush, embracing the illusion of freedom in the barbarous license of state-sanctioned killing?  Or, do we turn once more to recognize the fundamental dignity of every human being, the equal dignity which informs ordered liberty and makes authentic civilization possible?"  Congress' partial birth abortion ban and the Supreme Court's decision to uphold that ban in Gonzales v. Carhart are signs that we are retreating from the jungle and back to civilization.  These are, however, only tenative first steps.  Much work still needs to be done. 

Gonzales v. Carhart

By Michael Scaperlanda

In a post yesterday, Rick noted the narrowness of the Court's PBA holding.  And, I agree with him that it was a narrow holding.  Time will tell, but I think that despite its narrowness this decision can be hailed (or lamented) as a huge step toward undoing Roe.  What is the evidence for this?  First, Casey itself sets up the potential seeds for its own destruction in its funky stare decisis analysis.  Has time - and the facts - overtaken the holding in Roe?  At some point, Kennedy may conclude that a new understanding of fetal life, the destruciton of life, and the state's interest in protecting innocent life have overtaken the assumption that lead to the Roe decision.  In his majority opinion yesterday, he describes in gruesome detail the D & E and intact D & E abortion procedures.  If the state can prohibit an abortion doctor from partially delivering a baby, puncturing her skull, and vacuuming out her brains, why can't the state prohibit an abortion doctor from ripping the live child apart limb by limb as happens in D & E abortions?  Second, describing the abortions in such detail with a human touch unlike Breyer's cold clinical approach, further undermines the abortion regime.  Third, the opinion refers to the bond of love between mother and child, the act of abortion as "killing," and the fetus as a living organism.  Fourth, I think Ginsburg is right, the Court's opinion "refuses to take Casey and Stenberg seriously.  It tolerates, indeed applauds federal intervention to ban nationwide... It blurs the line, firmly drawn in Casey, between previoability and postviability abortions.  And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health." 

Roe and Casey are still in place, but I suspect these precedents are seriously wounded.  Time will tell whether the wounds are fatal.  I can't read tea leaves (or the minds of Kennedy, Alito, and Roberts), but Gonzales v. Carhart certainly provides the tools for them to either overturn Roe or back away from it to the point where it is irrelevant.

Walter Murphy, Antonin Scalia, and Cafeteria Catholicism

By Rick Garnett

In response to Michael's posting of the interview with Walter Murphy:

Professor Murphy -- an accomplished scholar, by any measure -- says that he is "on a terrorist watch list" and that the "only reason he can think of" for this is because he "did speak against Bush."  For a critical examination of Professor Murphy's claim, go here.  (Just to be clear:  It would, of course, be outrageous if an eminent Princeton scholar were put on a "Terrorist Watch" list for "speak[ing] against Bush."  I suggest, though, that Professor Murphy's conversation with an American Airlines "clerk" does not provide particularly strong evidence for thinking that this is what happened.)

As for being a "Catholic of sorts" and a "cafeteria Catholic" -- like, Professor Murphy thinks, Justice Scalia -- well, I suppose we're all "works in progress" when it comes to being the Catholics we should be.  I suspect, though, that Professor Murphy is misjudging the Pope when he surmises that the Pope would regard him as a "heretic." 

Evangelicals on the Left? God Forbid!

By Michael Perry

Sightings  4/19/07

Evangelicals on the Left?  How Shocking!  How Awful!
-- John G. Stackhouse

Martin Marty wrote on Monday about evangelicals from his vantage point outside evangelicalism -- but within the fellowship of those he likes to call the "original evangelicals," namely, Lutherans.  From within (latter-day) evangelicalism, then, I offer this week's second observation of this burgeoning movement.

I have been wondering why people both within and without evangelicalism are so surprised -- and sometimes even upset -- about the emergence of a "non-right-wing" evangelicalism in America.

For example, the executive of the National Association of Evangelicals (NAE) recently endorsed a document produced by a group called Evangelicals for Human Rights that condemns the use of torture, and calls on the United States government in particular to forswear its use.  This action, coming after last year's declaration of concern about global climate change by evangelicals as prominent as Rick "Purpose Driven" Warren, has aroused shock and awe among many on the right who had previously enjoyed arrogating the term "evangelical" entirely to themselves.

Mark Tooley of "Front Page Magazine" says that "the 17-member drafting committee, called 'Evangelicals for Human Rights,' is comprised nearly exclusively of pseudo-pacifist academics and antiwar activists who sharply condemn the Bush administration."  (One notes with bemusement this characterization of, for example, drafter David Neff, editor of the notoriously non-left-leaning Christianity Today magazine.  And one asks again the perennial question, What exactly is a "pseudo-pacifist"?)

Indeed, Tooley pronounces the ultimate doom on the NAE and its fellow-travelers: They are on the same leftist path to irrelevancy, if not heresy, as the National Council of Churches -- an insult no greater than which can be conceived in these circles.

The same week as this bit of excitement was brewing, Michael Kerlin of Philadelphia's "Evening Bulletin" wrote of "A Different Kind of Evangelical" -- namely, a typical South American evangelical who votes with left-wing political parties because they promise relief and social change from the establishment's oppression.  Mr. Kerlin suggested that as the First Evangelical was touring South America, President Bush might have liked to know that the average evangelical is more likely to vote for the likes of Daniel Ortega or Hugo Chavez than anyone else.  He or she would do so because the alternative choices usually mean voting for the old regime of landowners or the new regime of business magnates, not to mention the Roman Catholic hierarchy, which is often identified with both.

Meanwhile, our gaze returns to North America, where evangelicals are excited about the release of the movie Amazing Grace, the story of William Wilberforce and the campaign to abolish the British slave trade.  But in the context of these contemporary observations, we might ask whether this evangelical hero would be more likely to line up today with Jim Dobson or Jim Wallis.

Of course, it is anachronistic in the extreme to try to situate Wilberforce in terms of today's American political landscape.  And there wasn't a lot of socialist theory to attract Wilberforce's interest -- he died in 1833, in the earliest decades of socialist thinking and fifteen years before the Communist Manifesto was published.  But the abolition of slavery is what anyone would have to call government-initiated broad structural change on behalf of justice -- which is what socialism ideally is all about.  So it's certainly not clear that Wilberforce would maintain the current religious right's narrow focus on the (free, white, prosperous) family, so to speak.

Indeed, as a Canadian who has lived all his life with a third national political party dedicated to democratic socialism and founded by a Baptist pastor; as one with a nodding acquaintance with social democratic movements in Britain, the European Continent, and Australasia; and as one who notes that George W. Bush's best political friend in the world is a Christian man who leads the British Labour Party -- well, the idea that evangelicalism should be confined to the American right strikes me as something that could literally happen only in America.

References:
Laurie Goodstein's article "Evangelical Leaders Join Global Warming Initiative" (New York Times, February 8, 2006) can be read at: http://www.nytimes.com/2006/02/08/national/08warm.html?ex=1297054800&en=c3998565b07f9657&ei=5088&partner=rssnyt&emc=rss.
Michael D. Kerlin's article "A Different Kind of Evangelical" (The Evening Bulletin, March 12, 2007) can be read at: http://www.thebulletin.us/site/news.cfm?newsid=18068434&BRD=2737&PAG=461&dept_id=576361&rfi=6.
Mark Tooley's article "The Evangelical Left's Tortured Logic" (FrontPageMagazine.com, March 15, 2007) can be read at: http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=27382.
John G. Stackhouse, Jr., is Sangwoo Youtong Chee Professor of Theology and Culture at Regent College in Vancouver, Canada.

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Walter Murphy, Antonin Scalia, and Cafeteria Catholicism

By Michael Perry

[MOJ readers may find this interesting.]

April 4, 2007

A moment with...

Walter F. Murphy

Walter F. Murphy, the McCormick Professor of Jurisprudence, emeritus, returned to Princeton in early March for a symposium on his new book, Constitutional Democracy: Creating and Maintaining a Just Political Order, which explores the lessons of constitution-making from ancient Greece to today. The book is being hailed as a masterwork capping a distinguished career. Murphy spoke with PAW contributor Merrell Noden ’78 after the conference.

You said that you are on a terrorist watch list and so were stopped by airport security on the way to this event at Princeton. Why?

Yes. I’m a retired colonel in the Marine Corps [awarded the Purple Heart and Distinguished Service Cross], which would indicate that I’m probably not a terrorist. But I did speak against Bush [atPrincetonlast September]. That’s the only reason I can give.

You argue in your book that the Constitution is open-ended about who should interpret it.

It isn’t judges alone who should interpret the Constitution, but presidents and members of Congress ... and also the electorate. By 1936 the Supreme Court had declared unconstitutional almost every important part of Franklin D. Roosevelt’s New Deal. He ran for re-election and he carried 46 states. That was just a stinging [electoral] rebuke to the Court.

Speaking of presidents, George W. Bush has twice sworn to “preserve, protect, and defend” the Constitution. How’s he doing?

Poorly. He has said, “I am the decider” and ignored congressional statutes. Recently, he said he would go to the courts for warrants to wiretap. But for four-plus years he said he wouldn’t, and his excuse was so lame as to be totally unbelievable. He said it would take too long. Well, there’s a special court set up that meets in secret, designed to make sure that what Richard Nixon did would never happen again. While I’m not an originalist, I think you’ve got to take a lot of what people like Madison and Hamilton said very seriously. And in the Federalist Papers, Madison said if all power is concentrated in the hands of a single person, a single office, or a single branch of government, you’ve got the definition of tyranny.

I have chided some of my originalist friends, who say, look to an originalist understanding. The objective these [framers] apparently shared was a determination to prevent the recurrence of what the British called “writs of assistance” — where the executive could search and seize without a judicial warrant. It’s the classic thing that the Fourth Amendment was designed to prevent! But I have not heard one single originalist raise that objection against Bush’s policies. They raised it against Johnson, against the Supreme Court. Not against Bush.

What sparked your interest in the Constitution?

Mine was generated by an undergraduate course in constitutional law, which I found fascinating. I went off to graduate school at [the University of] Chicago without intending to study it. But a number of things happened. I fell in with a marvelous professor. And also it turned out that some school desegregation cases were coming up in Charleston [S.C., where Murphy grew up], and some voting-rights cases, too. One of my neighbors in Charleston was a federal judge who suddenly had a spate of cases before him. He decided for the blacks and was ostracized from the local community. Somebody fired a shot through his window at night.

Were you aware of all that ugliness when you were growing up?

Being a white Irish Catholic in the deep South, in the Bible Belt, I felt a lot of discrimination. When Kennedy was assassinated, my mother, who was still teaching high school in South Carolina, said she received a note from the principal on that Friday afternoon that said, “John F. Kennedy has been assassinated. Please announce this to your students, and please instruct them that they shall not applaud.”

I was denied admission to Princeton as an undergraduate. I was first in my class at a Catholic high school and won a National Merit Scholarship. I got a letter from the admissions committee saying, “We think you’d be happier at a Catholic school.”

You ultimately did go to a Catholic university, to Notre Dame, and you’ve written three novels in which religion plays a significant role. Are you a religious person?

I’m a Catholic of sorts. I like to think I’m a Catholic, but I’m sure the pope would look on me as a heretic. [Supreme Court Justice Antonin] Nino Scalia, who’s an old friend, very intelligent with a great sense of humor — we sometimes can go 10 minutes without shaking fingers at each other! — claims I’m a “cafeteria Catholic,” meaning I pick and choose. And he’s right. He says my attitude on birth control is wrong. But on the death penalty, he doesn’t take the Catholic position. He’s cafeteria, too. We just have different selections.

Wednesday, April 18, 2007

More on the PBA ruling

By Rob Vischer

Over at Balkinization, there are two commentaries on today's PBA ruling (Gonzales v. Carhart) that you should read.  Jack Balkin challenges the ruling's connection to the state's interest in protecting human life.  (This relates directly to John O'Callaghan's earlier comment.)  An excerpt:

The Court emphasizes Casey's holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus' life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.

Michael Stokes Paulsen criticizes the "pernicious" doctrine of stare decisis, observing:

The true ground for the decision in Gonzales v. Carhart is that Stenberg v. Carhart was crushingly and horribly wrong, as a matter of first principles of constitutional understanding. But whether one agrees with this view or not, that is the issue. Is there anyone -- anyone on the planet -- who thinks that Gonzales v. Carhart and Stenberg v. Carhart were both right? Is not this an observation on which liberals and conservatives can agree?

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive