Suppose, hypothetically, that a non-profit organization concerned about racial justice and equality in the American economy conducted a series of undercover operations targeted at leading national banks. They secretly recorded video of banking executives making racially insensitive statements and generally exhibiting a callous attitude toward minorities in urban communities who struggle to pay their mortgages or start businesses.
On one video, let us say, the white executive of a major bank is caught saying to a lending committee that, while the bank’s brochures may tout diversity and non-discrimination, the bank really had no interest in providing financing for business projects in minority communities because “none of them have any work ethic.” Other members of the committee nod vigorously.
On another of these hypothetical videos, the head of urban residential loans for another major bank is depicted looking through a document showing the bank’s increase in mortgage lending in a minority neighborhood. He then remarks, with a chuckle, “they’ll never be able to pay off those mortgages for those over-priced houses. But we’ll take our profit and be outta there when the mortgages get sold in the secondary market.”
Other videos are in the same vein, showing similar troubling attitudes about race and minority communities in a number of leading American banking institutions. Again, this is all hypothetical.
The response in the American legal academy to these hypothetical videos can be imagined:
“The Banking Videos” likely would be incorporated into classroom teaching in courses on race and the law and in a number of courses on banking and commercial transactions. Students would be encouraged to prepare advanced writing papers dissecting the videos and suggesting new banking regulations to promote economic justice. Law journals would host symposia devoted to the legal and cultural issues raised by “The Banking Videos.”
The annual meeting of the Association of American Law Schools probably would host a plenary and well-attended session focused on “The Banking Videos.” The President of the AALS would devote a column in the AALS News observing that “The Banking Videos” remind us that the path to racial equality is still a long one, while insisting that legal education is at the forefront in highlighting the presence of structural racism in the American economy.
To be sure, classroom discussions and symposia presentations would have to address complaints that the hypothetical racial justice organization had used subterfuge to gain access to these insider banker meetings, as well as accusations that the videos had been edited in a misleading way. But such objections would not overshadow the larger issues or much divert attention from the shocking nature of some of the comments recorded and attitudes expressed — which “context” hardly softens.
By the end of the year, there’d hardly be a law student in the country who had not been exposed to the “The Banking Videos.”
It would have become a nationally-prominent “teaching moment.” And rightly so.
By contrast, consider the not-hypothetical undercover videos of Planned Parenthood leaders talking about late-term abortions and examining fetal remains.
In one video, Planned Parenthood’s senior director for medical services sips wine while saying to the undercover actors who claim to be seeking fetal organs: “We’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part. I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”
On another video, featuring the vice president and medical director for Planned Parenthood Rocky Mountains, we watch technicians crack fetal skulls to extract intact brains and pick through legs, abdomens, and other remains. One Planned Parenthood employee says in a jocular tone: “Here’s some organs for you. Here’s a stomach, kidney, heart.” Another Planned Parenthood employee jokes as she examines dismembered aborted fetuses: “And another boy.”
For “A Quick and Easy Guide to The Planned Parenthood Videos,” Mollie Hemingway’s guidebook at "The Federalist" is invaluable and offers these and other direct quotations in context while also providing direct links to both important excerpts andthe full videos. (Warning — these videos are disturbing and some are graphic.)
Let's set to one side the debate whether the videos provide any “smoking gun” evidence on actual violations of the laws restricting sale of human fetal body parts. Indisputably, even to the point that the President of Planned Parenthood apologized for tone, the videos portray a shockingly callous attitude. We hear casual dinnertime comments about “crushing” living unborn human beings and see Planned Parenthood personnel lightheartedly rooting around in the remains of dismembered fetuses while joking that they’ve found this or that organ or encountered “another boy.”
So how much attention have “The Planned Parenthood Videos” received in the typical law school?
In courses on human rights or professional responsibility, are they being used to show the danger of becoming desensitized and losing a sense of human dignity? Are we as legal educators addressing the danger that character may be corrupted when someone too easily assimilates into an institutional setting? Have we used these videos as examples of how ideology may blind one to the horrors in which one is participating?
In constitutional law classes, are “The Planned Parenthood Videos” being offered as a counterpoint to the politically-favored narrative that Roe v. Wade is an uplifting advance for gender equality and an unalloyed victory for human rights? When people fall back on comfortable slogans like “the right to choose,” is the reality of dismembered fetal bodies being picked over by technicians like butchers at a meat packing plant shown to suggest that perhaps what is being “chosen” is termination of fellow human beings, at least with respect to late-term abortions?
In sum, is there really any debate occurring at the typical law school about the legal and cultural (much less moral) significance of these videos? Or, instead, are legal academics generally ignoring the videos or declaring uncritically that the videos don’t really portray what they obviously do show to anyone who watches them? Are we as a community of educators betraying our oft-touted mission to honestly address even that (especially that?) which makes us uncomfortable? Or, when it comes to “reproductive rights,” is the real message that diversity and critical reflection on this issue is not welcome in the American legal academy?
The American Principles Project has a released a scholars' statement on resistance to Obergefell, and the Campaign for American Principles has put out a related "Call to Action." There is an interesting difference between the two that jumped out at me.
The Call to Action includes a paragraph that acknowledges the supremacy of the Supreme Court within the federal judicial system, even while differentiating that supremacy from other ways of understanding judicial supremacy:
The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.
That paragraph seems just right, though I did not see any corresponding acknowledgment of intra-judicial supremacy in the scholars' statement. And the pledge at the end of the call to action, as well as the request of officeholders at the end of scholars' statement, includes a position that in tension with the idea that "the Supreme Court is supreme in the federal judicial system."
The pledge in the call to action asks presidential candidates to "refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as precedent." And the scholars' statement calls on "all federal and state officeholders ... to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case."
In legal terms, these statements call for the rejection of vertical stare decisis. This phrase captures the notion that the decisions of a superior appellate court create precedent that is binding on lower courts within the system. This idea that Supreme Court decisions create binding precedents for all other courts in the United States deciding questions of federal law is a widely accepted feature contributing to what makes the Supreme Court "supreme in the federal judicial system."
The vertical stare decisis effect of Supreme Court decisions is largely, though not entirely, uncontroversial. Another way of thinking about the Supreme Court's supremacy focuses on the Court's authority to exercise appellate jurisdiction to reverse decisions that depart from its precedents.
There is not much practical difference between these two positions at the moment because the Supreme Court's appellate jurisdiction is pretty expansive. But a practical difference could emerge if the Supreme Court's appellate jurisdiction were taken away.
As long as the Supreme Court's appellate jurisdiction remains intact, those calling for resistance to Obergfell should recognize the practical and legal obstacles that follow from the Supreme Court's supremacy in the federal judicial system. To the extent that an officeholder's refusal to treat Obergefell as law injures the legal rights of individuals in a way redressable in federal court, the matter will end up there, and then the officeholder will lose (at least for the time being). Direct confrontation with judicial supremacy in the realm of practice therefore seems like a bad idea.
Somewhat analogous to how Lincoln approached slavery or the United States approached Communism during the Cold War, a containment strategy seems more appropriate. The idea behind containment is to limit the damage that comes from erroneous Supreme Court decisions by confining them as much as possible to the federal judicial domain and then cabining their reach through legal argument within that domain.
Containment should be joined with an effort at conversion. Don't just oppose judicial supremacy; give judicial supremacists a better alternative. In my view, that alternative is judicial departmentalism.
“Judicial supremacy” is a name for the claim that the Constitution means for everybody what the Supreme Court says that it means in the course of resolving a case or controversy. By contrast, “judicial departmentalism” is the idea that the Constitution means within the judicial department what the Supreme Court says it means in resolving a case or controversy.
Judicial departmentalists may disagree about details, even important details like vertical stare decisis. But their program is not entirely negative. It affirms a truly judicial form of judicial supremacy. And apart from sweeping and erroneous dicta in a few extraordinary constitutional cases, judicial departmentalism fits within our legal structure right now. In many ways, the judicial departmentalist understanding already matches the self-conception of federal judges when they are thinking like judges in normal cases rather than when they are under attack and defensively invoke judicial supremacy. Judicial departmentalists have no problem with judicial supremacy when it is truly judicial.
So, by all means, count me in the anti-judicial supremacy camp. But join me in the judicial departmentalist camp instead.
In keeping with the structure of the scholars' statement, I conclude with a short list of take-away assertions:
- Containment and conversion are the best way to transform "judicial supremacy" as it now exists into truly judicial supremacy.
- Containment and conversion to judicial departmentalism are the best way to contribute to constitutional supremacy.
- Confrontation in the realms of theory and of law is needed. But in the realms of practice and politics, we should be content to contain and convert.
Today is the Feast of Blessed John Henry Newman (the date of his conversion in 1845). Newman is the towering Catholic intellectual figure of the nineteenth century, but he seems to me unduly neglected outside of somewhat narrow historical and theological circles. For those of us working on broadly legal, moral, and political questions, the fact that Newman wrote little directly on what we would conventionally term "ethics" or "political theory" explains a good deal of that neglect (as he wrote late in his life, "I feel myself to be so little of a judge on political and even social questions").
But in addition to his magnificent sermons, The Idea of a University, and other occasional writings, there is a feature of Newman's thought that might be an important consideration for how legal scholars go about making arguments and how legal arguments come to have persuasive force. It is Newman's account in The Grammar of Assent (and also earlier in such places as Sermon 13 of his Oxford University Sermons) that acceptance of an argument depends on a variety of prior beliefs and dispositions of the person considering the argument. As Alasdair MacIntyre summarizes Newman's view in God, Philosophy, Universities: A Selective History of the Catholic Philosophical Tradition (2009):
Newman himself contended that arguments—outside mathematics and formal logic—do not have compelling force as such, and he therefore spoke of such arguments as probable rather than demonstrative. A probable argument is one that may be found compelling by one individual, but not by another because of the different antecedent background beliefs that each brings to her or his evaluation of that argument. It is these background beliefs—what Newman called “that large outfit of existing thoughts, principles, likings, desires, and hopes, which make me what I am” [Grammar of Assent, Ch. 10, §2]—that make us find a particular probable argument compelling or not. So how we respond to an argument may be a test of us and not only of the argument. We have to become the kind of person who is open to just those arguments that directs us toward the truth. And if, because of our character and our antecedent beliefs, we fail to be open to the truth, this failure will determine our philosophical as well as our other stances. But which then are the arguments that direct us toward the truth?
They will be, if Newman’s conclusions in The Idea of a University are correct, arguments that enable us to integrate our theological understanding of the created universe with the understanding of each of the different aspects of that universe that is afforded by the enquiries of each of the secular disciplines, by Newman’s old age an ever-growing multiplicity of independent and wide-ranging enquiries in the natural and social sciences as well as in the humanities (pp. 149-50).
There is much more to say, of course, but my modest suggestion for now is that Newman makes a vital point here about how reason (including legal reasoning) operates. Legal arguments are neither mathematically demonstrative (as I suppose a caricature of legal formalism would have it) nor radically under-determined and relativistic. As first-year law students come to figure out (ideally before final exams), learning about the law is neither a mechanical application of memorized rules to cases nor a free-for-all exercise in which any answer is as good as the next. Legal concepts such as "intent," "equal protection," and "rights" have a range of possible meanings, some better and legally more persuasive than others. A lot of academic debate (not to mention debates in the wider political culture) proceeds as if making arguments to each other were a matter of simply showing that x is true or that y is mistaken. But if we take seriously what Newman argues about arguments, persuading others depends on a complex set of background considerations and, ultimately, on one's character and the integration of one's beliefs.
