Signing Statements and the Role Morality of Scholars

The Catholic corner of the Internet has been ablaze for the past day or so about a letter submitted to the New York Times by Catholic theologians upset over Ross Douthat columns about the Synod and, in particular, his use of the word “heresy” in a sub-tweet during a Twitter exchange. Setting aside the letter’s objection to Douthat’s lack of “professional qualifications” (which if enforced would leave the Times op-ed page with only Paul Krugman’s columns on economics and Tom Friedman’s on foreign policy), there is also an important and, to my mind, interesting issue here about the professional norms applicable to signing such statements.

I was once told by a doctoral student of John Rawls’s that Rawls, though an opponent of the Vietnam War, did not sign statements opposing the war because such statements were necessarily too imprecise and usually expressed mere opinion without argument. (Toward the end of his life, Rawls did, alas, sign the so-called “Philosopher’s Brief” in Glucksberg v. Washington, to which David Velleman and Paul Weithman responded powerfully here and here.) I’ve been thinking about the issue of when one should sign statements, amicus briefs, and such since attending an AALS panel last January (organized by my friend and Villanova colleague Michelle Madden Dempsey) on “The Role Morality of the Legal Scholar.” On the panel, Richard Fallon reprised arguments he made a few years ago here raising serious concerns about legal scholars signing amicus briefs, and Amanda Frost responded to Fallon’s arguments along these lines.

For myself, I’ve not been much for signing statements by academics, though I have signed onto amicus briefs in areas of my interest and expertise—including religious freedom and tort and contract law preemption—where I knew the counsel involved and was able to provide substantive feedback in the drafting of the brief. And while I don’t have especially strong or developed views about the role morality of academics when deciding whether to sign this or that statement, it does strike me as an under-explored topic in need of more thoughtful reflection than it usually gets. Notably, what criteria should govern when one does or does not sign a statement? What does one hope to accomplish through such a statement? And how should one navigate between the twin dangers of either self-righteous and ineffectual academic preening in choosing to sign a statement or cowardice in not doing so?