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.

Sunday, August 21, 2005

Roberts, College Education, and "Prejudices"

By Thomas Berg

I've missed blogging the last few weeks because of family (parental) health issues and a Northern-California vacation; but I've enjoyed dipping into the others' discussions.

The Times has an interesting story on John Roberts' intellectual development,i.e. the crystallization of his conservatism at Harvard as an undergrad and law student in the mid and late 70s, when campus conservatives were viewed as political freaks and intellectual jokes.  The quote that interested me is from Harvard lawprof (and leading critical-legal-studies theorist) Morton Horwitz, who didn't teach Roberts but recently read an undergraduate paper Roberts wrote on Daniel Webster's conservative philosophy.

It seemed apparent to [Horwitz, from reading the paper,] that Judge Roberts "was a conservative looking for a conservative ideology in American history."

"It was interesting to me how self-conscious it was in terms of his own discovery of where he stood," said Professor Horwitz, a self-described liberal. "My guess is he came to Harvard College with conservative prejudices and tried to educate those prejudices whenever he had the opportunity." Some students lose their prejudices, he said. "But others, especially the more intellectual types, actually educate their prejudices."

I think that Horwitz describes a real pair of phenomena that happen to students:  those who just drop the the simplistic beliefs with which they came, and those who retain the basic beliefs but discover that there is more sophisticated foundation for them than they ever had known (and who perhaps develop a more sophisticated content to the beliefs as a result).  I trust, though, that in speaking of "prejudices" he's not just referring to conservative beliefs, but to students' entering beliefs in general.  Of course, in one sense having "prejudices" is not a bad thing and is inevitable -- our deepest beliefs about the world are underdetermined by pure reason and evidence (underdetermined not undetermined), and they reflect, in significant part, existential commitments that we make as individuals and in various communities.  As a crit, you would think Horwitz would affirm that this is so for liberal beliefs as well as conservative beliefs.  To that extent, "educating one's prejudices" could be something quite different -- and much more intellectually respectable -- than just finding confirmation for whatever silly thing one thinks.  As to the silly things, we hope that students "lose their prejudices."  But again, I'm sure that Horwitz allows that liberal as well as conservative beliefs can be silly, and that switching at college from a widespread middle-American conservatism to a widespread campus-based liberalism is often a case of switching prejudices (now in the bad sense of prejudices) rather than losing them.

Tom B.

Saturday, July 23, 2005

Reader Comments on Catholic Judges and Communion: Part 2

By Thomas Berg

Thanks again to those who have written in comments on our latest thread -- we're glad to hear from you!

Reader Abe Delnore writes:

Brown asks, "does [Roberts] and every other Catholic judge have a duty to subvert the law--Roe--which certainly could be argued is as irredeemably corrupt as the Nazi genocide since it allows 1.3 million abortions to be performed annually in the US?"  Rob Vischer and others raised the specter of conscientious Catholic public servants practicing civil disobedience in
office.

Brown, I think, knows that the law in question is not Rowe or Casey; it is the US Constitution as interpreted in those cases.  Roberts and others have stated some variation of "Rowe is a matter of settled law."  This can only mean that they accept that abortion rights more or less as they exist now in this country are guaranteed by the US Constitution.  Whether they are a good thing or not is another matter.  Brown [Roberts -- ed.] serves on the federal bench and has taken an oath to uphold the US Constitution.  One must conclude that he does not see that venerable document as irredeemably corrupt.

If one believes that the US Constitution is irredemably corrupt, then one certainly must not take an oath to uphold it--particularly not an oath to serve in a voluntary, resignable position with an honorific character such as that of a federal judge.  Forced induction into an army fighting an unjust war that would be a different matter, but no one is coerced into the
ranks of the judiciary.

Vischer's ideas about judges and other officials practicing civil disobedience thus strikes me as absurd.  An official by definition cannot practice civil disobedience as it is normally understood: refusing to obey an unjust law and accepting the consequences.  Surely the most predictable consequence is removal from office, and in a judge's case reversal on appeal.  Wouldn't remaining in office constitute a material cooperation in evil, as well?  The only proper course I can see for a person convicted that the Constitution is irredeemaably corrupt is resignation and withdrawal from office.

[TB writes:]  My reaction to this is that it again overlooks the option of recusal rather than resignation.  I don't know of anyone who thinks that the entire Constitution is corrupted by the reading of abortion rights into the Fourteenth Amendment.  So far as I am aware, the opponents of Roe all think that this is a terrible distortion wreaked upon a document that is otherwise legitimate (if not admirable).  I suppose there are a few ultra-Montanists in America who think that, for example, the prohibition on establishing (pick your preferred faith) or the guarantee of freedom even for erroneous statements or beliefs make the Constitution illegitimate -- but there aren't many of those.  Contrast, for example, slavery, whose repeated protection and countenancing in the original Constitution could lead William Lloyd Garrison to colorably call the document "a covenant with death and an agreement with Hell."

But even having to enforce an isolated (as opposed to pervasive) bad doctrine could -- if the doctrine is bad enough -- require the judge to recuse, even if not to resign.  And although recusal wouldn't cause as much of a furor as would staying in the case and subverting the result through willful misinterpretation, nevertheless the sight of Catholic judges recusing themselves frequently would cause a lot of the turmoil that Elizabeth suggests -- including assertions that Catholics can't be trusted to do their jobs, etc.  So I think we're still back to Elizabeth's question about whether a Catholic judge enforcing Roe can receive communion when a pro-choice politician can't.

Tom B.

Friday, July 22, 2005

Reader Comments on Catholic Judges and Communion: Part 1

By Thomas Berg

My colleague Elizabeth Brown's question about Catholic judges and communion has prompted several comments from readers, which I'll post separately.

Billy Junker writes:

Cannot one make a distinction between interpreting the constitution the best one is able, no matter whether one likes what one finds, and crafting legislation?  A Catholic judge who upholds Roe could merely be saying that he believes the Constitution allows for the right, without saying he believes that the document is correct in allowing for the right.  Indeed, he might say that the Constitution allows for the right, and so must presently be followed, but that the Constitution should be changed-- not, of course, from the bench, but according to the provisions in the Constitution which allow for such change.  It is not his job to enact
legislation but to interpret a given document.  Different from him is the politician who, in the service of the common good, seeks to create laws. 

So I fail to see the problem.

[Tom B. writes,]  If I may put in two cents worth here:  I don't think this disposes of the problem.  Set aside the initial question whether Roe and Casey are even correct readings of the Constitution; assume for present purposes that they are.  At some point, wouldn't we all agree, an existing constitutional provision (or correct interpretation of it) becomes so unjust that the judge must refuse to follow it.  Not by purposeful misinterpretation of the document -- I agree with Mr. Junker on that -- but rather by recusal or resignation, which are options he doesn't consider.  A judge doesn't have any more license than a soldier to participate in an atrocity by saying "I was just following orders (in this case, the orders of the Constitution)."  Elizabeth's reference to Nazis brings up the example of the judges enforcing the worst Nazi laws.

And if the Church's pronouncements on the depth and scope of the abortion wrong lead to denial of communion for pro-choice Catholic politicians, isn't there a pretty good argument that a devout Catholic judge -- including a lower court judge -- must view enforcing Roe and Casey as so great a wrong that s/he must choose recusal or resignation instead?  Of course there are the arguments that this would deprive the nation of the service of Catholics who would make good contributions on other issues -- but one could say that of politicians as well, and the position denying communion to them seems to rest on a rejection of such a balancing calculus.  If one offers reasons why the judge could stay on the case or bench and follow Roe, is one thereby implicitly assigning the wrong of abortion a little bit lower seriousness than the arguments for the denial of communion to politicians suggested?

Tom B.

UPDATE:  David Opderbeck, business law prof at Baruch College-CUNY who operates the interesting blog Through a Glass Darkly, makes a comment that I take to be similar to Mr. Junker's:

Wouldn't there be some distinction based on the respective roles of elected officials and judges?  Patrick Brennan's previous post on "The judge's 'office'" might be relevant here.  An elected official's office in a republican democracy is, in part, to provide moral leadership.  If an elected official fails to provide positive moral leadership on an issue as central to the Church as abortion, the sanction of denying Communion may make sense.  In contrast, one prominent view of the judge's office in a republican democracy is that the judge should interpret and apply the law, not provide moral leadership about what the law should be.  On that understanding of the judicial office, I could see a principled difference in the Church's treatment of politicians and judges regarding abortion law.  I suppose if one is more of a legal positivist or legal realist, though, there might be reason to hold judges to the same standard as politicians.

I still wonder, though, whether this deals with the problem that the judge who enforces Roe is not just not "providing moral leadership," but is directly blocking a legislative effort to protect the unborn from a very great evil.  Is that much different than a legislator voting against such efforts?  Again, the critic of such a judge need not demand that the judge rule and subvert the established law, only that she recuse herself or (more extreme) resign.

Tom B.

More Questions about Catholic Judges and the Rule of Law

By Thomas Berg

My St. Thomas Law colleague Elizabeth Brown raises the following interesting and important questions in the light of the discussion about Roberts, Catholic judges, and the rule of law.  Thanks, Elizabeth.  Comments from co-bloggers and readers are encouraged. -- Tom B.

In reading Rob's post on "Non-judges and the Rule of Law", I began musing over the following questions:

Various posts on the Mirror of Justice blog have dealt with Communion and pro-choice Catholic politicians while others have dealt with whether a Catholic judge can apply Roe or Casey.  I, however, have not seen anything addressing the possibility of the bishops extending the same policy (denying Communion) to judges who follow or maintain the holdings in Roe and Casey.  It does seem at least possible to me that some bishop may threaten to deny Communion to judges, particularly Catholic Supreme Court justices, who follow or maintain the holdings in Roe and Casey.  In addition, the draft statement on Communion for the upcoming bishops' synod states disapprovingly: "Some receive Communion while denying the teachings of the Church or publicly supporting immoral choices in life, such as abortion, without thinking that they are committing an act of grave personal dishonesty and causing scandal."  In the last presidential election, some bishops said that they would deny Communion to Catholic politicians who acted in that way.  The precedent cited for the bishops' denial of Communion to pro-choice politicians is the excommunication of three segregationists who opposed the integration of Catholic schools in New Orleans in 1962 by Archbishop Rummel.  One of those segregationists was Louisiana Judge Leander Perez.  So this precedent would seem to indicate that the bishops could move in the direction of applying the same policy regarding denial of Communion to judges. 

Would the bishops who want to deny Communion to Catholic pro-choice politicians in fact be hypocrites if they did not impose the same punishment on judges or justices who follow or maintain Roe?  Afterall wouldn't a Supreme Court Justice who was given the opportunity to overturn Roe and failed to do so, be "publicly supporting immoral choices"?  By that standard, shouldn't Communion be denied to Justice Kennedy for his vote on Casey?  If Roberts believes in the value of stare decisis, can he vote to uphold Roe and still receive Communion?  Or does he and every other Catholic judge have a duty to subvert the law - Roe - which certainly could be argued is as irredeemably corrupt as the Nazi genocide since it allows 1.3 million abortions to be performed annually in the US? 

What kind of anti-Catholic backlash would result if a bishop threatened to deny Communion to Kennedy or Roberts if they refused to vote to overturn Roe when deciding an abortion case?  Could a Justice be impeached if he voted to overturn Roe due to a threat of being denied Communion, given that such a threat would be viewed by many non-Catholics (and possibly some Catholics) as religious blackmail?  If bishops refuse to apply the Communion policy to judges because it would do more harm than good, why would the same calculus not apply to politicians?   

I would be curious to read the thoughts of the Mirror of Justice bloggers and readers regarding any of the above questions.

Wednesday, July 20, 2005

More on Roberts' Rule of Law

By Thomas Berg

According to today's New York Times, Roberts' appellate-confirmation statement about Roe and Casey as precedent "made [him] somewhat suspect in the eyes of some social conservatives."  In general, though, pro-life groups (like other issue groups) don't care about whether Roberts has a consistent theory about the rule of law or conscientious objection.  They want to know whether he's likely to vote overrule or limit Roe and Casey as a justice (which is, of course, a different matter from whether he vowed to follow them while on the court of appeals -- so it wouldn't be disingenuous for him to vote to overrule Roe as a justice).  And it appears that most pro-life groups have confidence that he will vote to overrule them -- much more confidence than with Gonzales.  Roberts is more tied into the conservative movement generally by having served in the Reagan and Bush I Justice Departments and the Reagan White House and by other means.  Perhaps pro-life groups also find it reassuring that Roberts' wife Jane was a vice president of Feminists for Life.   By contrast, I think a lot of social conservatives feared that Gonzales would rise to the top of Bush's list not because of conservative principles but because of his personal friendship with Bush.

But before being too sure about Roberts' ultimate vote on the basic abortion right, conservatives should -- like liberals -- ask him lots of questions about his view of stare decisis (the importance of even the justices following precedent).  As Linda Greenhouse wrote in the Times, Roberts' career as well as his words last night bespeak not just a conservative, but also "someone someone deeply anchored in the trajectory of modern constitutional law, not of someone who felt himself on the sidelines throwing brickbats, nor of someone who felt called to a mission to change the status quo."

Tom B.

UPDATE:  Andrew Sullivan collects examples of "disgruntlement" about Roberts on "the grumpy right."

Tuesday, July 19, 2005

Harry Potter and the Dueling Christians

By Thomas Berg

The Pope is reportedly negative on Harry Potter.  And here's a Christian pro-Harry view (excerpted from a book called Looking for God in Harry Potter).

TB

Saturday, July 9, 2005

Casey v. Santorum on Families, Culture, and Economics

By Thomas Berg

In the Pennsylvania '06 Senate race, presumptive Democratic nominee Bob Casey Jr. (pro-life record, son of former pro-life governor) criticizes Rick Santorum's book comments about two-working-parent families, and the Santorum campaign replies.  With the prospect of the abortion divide significantly reduced in this contest, it will be really interesting -- and I hope rewarding -- to see these two Catholic candidates square off over issues like this:  are average families more threatened by economic pressures or cultural pressures, etc.

Tom B.

Friday, July 8, 2005

"Seamless Garment" Nominees?

By Thomas Berg

I share Rick's reaction to Bishop Sklystad's letter to the President on behalf of U.S. bishops concerning Supreme Court nominations:  the letter fails to make the distinction between (a) voting for policies that coincide with Catholic social teaching and (b) finding those policies in the Constitution.  Of course, several of the bishops' emphases are pretty difficult to disagree with as a matter of constitutional interpretation -- for example, protecting "the rights of minorities" and "respect[ing] the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment."  But that's only because those emphases are stated at such a high level of generality as to dodge all the hard questions that the justices must confront in real cases.  On some of the other emphases, the bishops fail to make any connection at all to constitutional provisions or principles -- for example, the emphasis on "ending the use of the death penalty" -- and it seems pretty clear they're just advocating someone who will vote for the right policies.  (Let me add, too, that I want to see the abolition of the death penalty:  see my "Religious Conservatives and the Death Penalty," posted to the right.  But as a matter of policy, not judicial decree.)

On the other hand, Professor Gerry Bradley's criticism of the bishops' letter is less convincing to me.  His problem is not that the letter speaks of policymaking rather than interpretation, but rather that it gets the policy emphases wrong.  In particular, he thinks that the letter "weakens the message on abortion by unfurling the well-worn 'seamless garment'" -- "the term Catholics use to describe it when their leaders water down the pro-life message by lumping abortion with other issues" as Bishop Skylstad does by adding considerations such as "the rights of minorities [and] immigrants," religious freedom, and "ending the death penalty."

This critical reaction, in this context, strikes me as a bit knee-jerk.  I certainly appreciate the argument that in choosing between candidates for office, a voter should always give abortion greater weight than all the other "seamless garment" issues combined.  (I don't agree with the argument when it's stated that categorically, but I can certainly appreciate its force in view of the seriousness of abortion as a moral wrong.)  But the voter usually has only two, maybe three candidates from whom to pick, and sadly in our current political world, one typically has to choose between abortion and several of the other "seamless garment"-type issues like immgrants' rights or the death penalty.  In that context, maybe the anti-abortion candidate is always the lesser of two evils, no matter how inferior or plain bad the opponent is on all other moral issues.

By contrast, President Bush doesn't face such a bipolar choice with his nomination(s).  He has a lot of qualified candidates from whom to pick, almost all of whom think that Roe v. Wade was wrongly decided.*  In that context, assuming the bishops are going to urge consideration of moral issues at all, it seems perfectly legitimate for them urge the President to ask whether the candidate in question will be strong on other moral issues as well as abortion.  Note that the bishops' letter urges first that the nominee "pre-eminently" support the protection of life from conception to natural death.  And note also that some of the other moral emphases in the letter are pretty darn fundamental -- again, "the rights of minorities," "the role of religion and religious institutions in our society," "the value of parental choice in education" -- such that it's questionable to dismiss them as just a "laundry list" as Gerry does.  Bishop Skylstad wasn't asking for someone who would oppose CAFTA or lift the welfare family-cap.

One can reasonably worry that the "seamless garment" idea will dilute the emphasis on abortion in some contexts.  But that does not entail developing an instinctual gag reflex whenever someone brings up other moral issues to consider along with abortion.

Tom B.

* OK, some of Bush's potential nominees may be soft on the protection of life.  But if Bush picks a (non-pro-life) Gonzalez, it surely won't be because the nominee is strong on the other moral issues that the bishops emphasize.

   

Friday, July 1, 2005

The Importance of Being Sandra

By Thomas Berg

As we salute Justice O'Connor as an individual and honor her for the boost she gave to the participation of women in the legal profession, we also turn to the consequences of her retirement for a whole range of legal, especially constitutional, issues.  The Supreme Court Nomination Blog posts a long list of the 5-4 decisions in which Justice O'Connor cast the deciding vote and a more conservative replacement might vote differently.  They include church-state cases but also, obviously, lots of others that might be grist for our mill of discussing the future of the law as it relates to Catholic thought.  I'd be interested in hearing about some of them -- especially some of the less well known holdings -- from fellow MOJers knowledgable in the respective fields.

Tom B.

More on Feldman's Solution

By Thomas Berg

Over at the SCOTUS blog on the 10 Commandments cases, I've posted a criticism of Noah Feldman's church-state proposal forthcoming in the Times Magazine.  Summary quote from the post:

In the modern state, therefore, preserving the goal of religious voluntarism that animated the founders calls for the opposite of Feldman's proposal: continued suspicion of official government religious pronouncements, but increased acceptance of including religious choices fully in programs of educational or social-service funding. Nevertheless, I want to emphasize that I think that Feldman's analysis is very thoughtful and deserves close study.

Tom B.

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