In her column today, Peggy Noonan warns about this:
I started noticing in the 1980s, the growing gulf between the
country's thought leaders, as they're called—the political and media
class, the universities—and those living what for lack of a better word
we'll call normal lives on the ground in America. The two groups were
agitated by different things, concerned about different things, had
different focuses, different world views.
But I've never seen the gap wider than it is now. I think it is a chasm.
Noonan's point -- that university professors and others among the cultural elite in the United States are preoccupied with matters that are viewed as politically correct extremism or ivory tower foolishness by others and thus have become disconnected from the world inhabited by our fellow citizens -- is difficult to dispute.
Every time I gather with neighbors or parishioners, or when I simply talk with others while waiting in line at the grocery store or walking around the lake at the local park, I am reminded by just how insular and narrow are academic perspectives on what is important, on moral values, on living a satisfying life, on politics, on economics, or even on hobbies and pursuits. The gulf between what is conventional wisdom in academic circles and what is valued in most other settings is brought home to me in more direct terms when I travel to places other than college towns or urban centers on the left and right coasts.
A weekend spent with my now-elderly mother and her friends or my in-laws and the extended family across several generations, along with the lively conversations and debates that follow when we get together, serve as a cautionary note to me. Even someone like me whose more conservative views and traditional religious beliefs depart from the academic norm can find himself shaped and constrained by the politically-correct academic mindset, starting to think that some points are obvious or some positions are indisputable. But then I realize yet again how most universities have become echo chambers in which like-minded academics, whatever their discipline (and to some extent whatever their political party), confirm one another in their opinions (most of the time).
The question I want to pose to members and readers of the Mirror of Justice is this: Are Catholic academics any better at reflecting the greater diversity of thought and breadth of perspective found outside of the typical university setting? Do we pay better attention to the matters that are of greater concern to our fellow citizens, even if they are not the hottest topics in the faculty lounge or the trendy subject of an academic symposium? Have we, or at least have those Catholic professors who take the Catholic legal and social thought projects seriously, done a better job of remaining connected to the real world? If the Mirror of Justice is any indication, I think maybe we have, that our very disagreements on-line keep us better grounded. What do you think? Comments are open.
I agree with the way Rick
suggests "judicial activism" might be salvaged as a way of measuring and potentially criticizing judicial decisions. I also join Rick in agreeing with Powell (as I have mentioned here on MOJ before) that humility, as Powell defines it, is a virtue judges should possess and practice -- a willigness to work within the Constitution as a tool for debate. Such humility needs to recognize, moreover, that there exists no single or unitary modality for the interpreting of our Constitution. The Constitution itself does not set a fixed list of legitimate forms of argument, and the history of the document's interpretation manifests multiple approaches that are all legitimate, by which I mean that the Constitution does not rule them out. The great irony and dirty little secret about activim is the textualist's deep complicity in it. Under the guise of pacificism and judicial discipline, the textualist seeks to reduce the list of legitimate modalities to one, viz., his own. As Powell has noted, "[a]cademic constitutional lawyers and the occasional Supreme Court Justice sometimes make arguments that the list of legitimate modalities ought to be drastically shortened, which is itself a legitimate form of argument but ought to be recognized for what it is, a proposal for radical reform." One reason, then, for resisting that proposal for radical reform is its unmitigated lack of humility. Another is the one I mentioned in Rick's and my exchange on the topic a few weeks back, viz., that textualism falsifies the way in which the making and receiving of law actually work. I won't repeat that here.
Like Tom Berg, I am filing an amicus brief in Winn (the Arizona school-choice case). My brief, co-authored with Jack Coons, is being filed on behalf of the American Center for School Choice (with which our own Patrick Brennan is also involved). Here is the gist:
This case implicates – and this Court should vindicate – two foundational and animating principles of our Constitution and tradition: First, as was emphasized long ago in Pierce v. Society of Sisters, parents enjoy the “liberty . . . to direct the upbringing and education” of their children. 268 U.S. 510, 534. After all, “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id. at 535. Arizona’s tax-credit program helps to make this promised right a meaningful reality for thousands of parents.
Second, and relatedly, this Court reminded the country in its landmark decision in Brown v. Board of Education that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education[.]” 347 U.S. 483, 493 (1954). See also Zelman, 536 U.S. at 680 (Thomas, J., concurring) (“[W]ithout education one can hardly exercise the civic, political, and personal freedoms conferred by the Fourteenth Amendment.”). Policy initiatives like Arizona’s bring this opportunity closer to thousands of children for whom it would otherwise, unfortunately, be out of reach. . . .
Parental choice in education, which the Arizona tax-credit program helps to promote, is constitutional, sensible, and just. What’s more, it is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the poor as citizens of equal dignity; it promotes the independence upon which constitutional government depends; and it empowers parents to transmit their values to their children. Because the decision below is inconsistent both with this Court’s controlling Establishment Clause precedents and with fundamental values that have long animated our traditions, it should be reversed.
Patrick makes a good point, of course, that the "activism" charge -- lobbed against conservatives in the early 20th century, then against liberals in the 1960s and 70s, and now (again) against the Rehnquist and Roberts Courts -- can be frustratingly contentless. For some thoughts of mine about what could be the content of the charge, see this exchange between Kim Roosevelt and me, about his then-new book, "The Myth of Judicial Activism." Roosevelt wrote (among other things) that:
. . . “judicial activism,” as the phrase is typically used, is essentially empty of content; it is simply an inflammatory way of registering disapproval of a decision. It is supposed to indicate that a judge has decided a case based on personal policy preferences rather than law. . .
And I wrote (among other things) that:
[I]n his recent Walter F. Murphy Lecture, “Constitutional Virtues” (published in the Green Bag), Professor H. Jefferson Powell took up the question, why does the Constitution bind? Does it have, and how does it have, “legitimate authority?” Along the way to answering that question, he identifies “humility” as a constitutional virtue, and defines it as:
the habit of doubting that the Constitution resolves divisive political or social issues as opposed to requiring them to be thrashed out through the processes of ordinary, revisable politics. . . . [t]his virtue manifests itself in the continuing recognition that the Constitution is primarily a framework for political argument and decision and not a tool for the elimination of debate.
It seems to me that “judicial activism” might be salvaged, and used as a way of identifying and criticizing decisions—such as, in my view, Casey—that fail to demonstrate this virtue. . . .
Cathy Kaveny believes, rightly I think, that the Catholic Church is in the midst of an acute crisis, a crisis that is underestimated by the hierarchy. In a post at dotcommonweal, she points to yet another liberal Catholic, an Illinois appellate judge who is in anguish about whether she should stay in the Church. That judge expresses the hope that the hierarchy would excommunicate her and make the choice for her. See here.
The comments to Cathy’s post are well worth reading for those interested in the plight of the liberal Catholic. Most of those who comment empathize with the Judge’s plight and have resolved it in various ways (leaving, staying to fight, staying but not receiving communion). One of my favorite comments is by David Nickol, “It seems to me to all boil down to a very basic decision. If you believe that the Church is so messed up that it can’t be what it claims to be — an organization to represent Jesus on earth, guided by the Holy Spirit, and indefectible — then you leave. If you believe the claims the Church makes about itself, then you stay.
“It surprises me to hear almost no discussion among Catholics about whether or not the Church’s behavior is evidence that it can’t be the divinely guided institution that it claims to be.
“Are the claims the Church makes about itself credible? If so, go to Mass every week, go to confession, etc., etc., and don’t read the newspapers.”
As many of you know, the Supreme Court is reviewing the Ninth Circuit's
decision striking down Arizona's school-choice law that gives taxpayers tax credits for contributing to "student tuition organizations" that support scholarships at private, including religious schools. Despite the huge similarities between this case and
Zelman, where the Court upheld properly-designed school voucher programs, the Ninth Circuit stretched and strained to strike down this program. I wrote
this amicus brief together with Doug Laycock (now at Virginia) for the Catholic bishops, the Christian Legal Society, and others, pointing out how the court of appeals utterly disregarded the principles of respecting choice in religious matters that animated the voucher decision and should animate the Religion Clauses. Other briefs in the case, as they are filed, are
here.
Thursday, August 5, 2010
I recognize I'm a tiresome bore (not boor, I hope) on this topic, but would intelligent (and other) people, please, please stop talking about the evils of "judicial activism" simpliciter? The commentary leading up to and now following Elena Kagan's nomination and confirmation has pivoted, as it has on many recent Supreme Court (and other) judicial nominations and confirmations, around the question of whether the nominee would be -- quod Deus avertat!! -- an "activist," the asserted *assumption* being that activism is both (a) defined and (b) very, very, very bad. The first thing I don't see, though, is the argument behind (a). What is activism? What is the evidence concerning what our Constitution actually charges judges to do? What *exactly* is prohibited? And why? What makes some offical judicial act passive rather than "active"? Moving on to assumption (b), passivism is not *inherently* a virtue, not even of a judge -- as Aristotle made clear the day before the day before yesterday. The opponents of "judicial activism" invoke the Constitution, but they rarely and barely explain, in the contexts I have in mind (as well as some others), what exactly they mean by such activism and exactly why it is prohibited (or just plain evil). Respect for the Constitution, at least, requires precision with respect to the Article III power. We all understand what is going on behind and through this talismanic treatment/invocation of "judicial activism," but we can do better. And we would be better for doing so.
