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.

Wednesday, March 4, 2015

Assorted last-minute pre-argument thoughts on King v. Burwell

Insufficiently chastened by my embarrassingly inaccurate pre-argument assessment of Yates v. United States, I thought I'd share a few pre-argument thoughts on King v. Burwell. Once the arguments take place, it is very difficult to recover the frame of mind one had about what the Justices ought to have thought after exposure to what they actually think (or at least appear to think as of the time of argument). But preserving this pre-argument frame of mind for later re-examination can helpfully contribute toward calibrating one's assessments as a lawyer about the kinds of arguments that have currency at the Court at any given moment in time. This is not to say that "currency at Court at any given moment in time" is the only, or the best, or even a reliably sound measure of what makes for a good legal argument all things considered, but having a sense of what the various Justices believe to be good arguments at any given moment in time is important enough to be worth being wrong about. 

To slough off all but the most intrepid of readers (if I haven't already), I'll begin with a meta-meta-meta-point about law professor commentary on King v. Burwell. The prompt is Paul Horwitz's post about what he calls "Randy Barnett's latest ref-working post." As typical of his meta-meta-posts, Paul's post about Randy's meta-post contains much to agree with. His identification of many other reasons--besides "ref-working"--that legal academics and legal journalists write commentaries of the sort that Randy criticizes is helpful and accurate as far as it goes. But when Paul turns (in his point 5) to "what Randy himself is engaged in doing," he submerges the simplest and best explanation, which is that Randy is sincerely and appropriately concerned that Chief Justice Roberts buckled in NFIB v. Sebelius and made a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court. Randy does not want this to happen again; he worries not only that other people do, but also that they are working to bring that about, so he tries to counter it even while recognizing the likely futility of such an enterprise given his view of what happened in NFIB v. Sebelius. (If this explanation of Randy's reason for writing is accurate, I disagree with Randy on this point, but I realize why he would think I am wrong and he is right about this. Planned Parenthood v. Casey stands as a monument to various Justices' capacity to make a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court.) Sure, Randy's post "can be read" as "an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of 'the left' to flatter or threaten the Chief." But much "can be read" many ways (as Paul recognizes elsewhere throughout his post), and I draw a different lesson in this meta-meta-meta commentary. (WARNING: "moral sermonizing" ahead.) Most of us can't shake the idea that the Justices are and ought to be "refs," even--and especially--in cases like King v. Burwell. And that is a good thing even while we shouldn't let our attachment to this idea unduly influence our assessments of the extent to which they actually succeed in that role. 

Now for some thoughts on the issues in the case:

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"What Scares the New Atheists"

John Gray points out (as many have) a few of the many holes in the aggressive-but-thin atheism of Dawkins et al.  A bit:

The far-reaching claims these thinkers have made for liberal values can be detached from their theistic beginnings; a liberal morality that applies to all human beings can be formulated without any mention of religion. Or so we are continually being told. The trouble is that it’s hard to make any sense of the idea of a universal morality without invoking an understanding of what it is to be human that has been borrowed from theism. The belief that the human species is a moral agent struggling to realise its inherent possibilities – the narrative of redemption that sustains secular humanists everywhere – is a hollowed-out version of a theistic myth. The idea that the human species is striving to achieve any purpose or goal – a universal state of freedom or justice, say – presupposes a pre-Darwinian, teleological way of thinking that has no place in science. Empirically speaking, there is no such collective human agent, only different human beings with conflicting goals and values. 

Tuesday, March 3, 2015

"Why Our Children Don't Think There are Moral Facts"

An interesting piece in the New York Times yesterday. The reason provided in the article is that the public school curriculum draws a hard line between value claims (opinions) and other sorts of claims that can be "tested or proven" (facts). I wouldn't think this is solely a feature of the contemporary public school curriculum, or even of our particular moment. Indeed, this kind of critique of early education is familiar from previous periods and cultural settings. See, e.g.:

In their second chapter Gaius and Titius quote the well-known story of Coleridge at the waterfall. You remember that there were two tourists present: that one called it 'sublime' and the other 'pretty'; and that Coleridge mentally endorsed the first judgement and rejected the second with disgust. Gaius and Titius comment as follows: 'When the man said This is sublime, he appeared to be making a remark about the waterfall... Actually ... he was not making a remark about the waterfall, but a remark about his own feelings. What he was saying was really I have feelings associated in my mind with the word "Sublime", or shortly, I have sublime feelings' Here are a good many deep questions settled in a pretty summary fashion. But the authors are not yet finished. They add: 'This confusion is continually present in language as we use it. We appear to be saying something very important about something: and actually we are only saying something about our own feelings.' ....

The schoolboy who reads this passage in The Green Book will believe two propositions: firstly, that all sentences containing a predicate of value are statements about the emotional state of the speaker, and secondly, that all such statements are unimportant. It is true that Gaius and Titius have said neither of these things in so many words. They have treated only one particular predicate of value (sublime) as a word descriptive of the speaker's emotions. The pupils are left to do for themselves the work of extending the same treatment to all predicates of value: and no slightest obstacle to such extension is placed in their way. The authors may or may not desire the extension: they may never have given the question five minutes' serious thought in their lives. I am not concerned with what they desired but with the effect their book will certainly have on the schoolboy's mind. In the same way, they have not said that judgements of value are unimportant. Their words are that we 'appear to be saying something very important' when in reality we are 'only saying something about our own feelings'. No schoolboy will be able to resist the suggestion brought to bear upon him by that word only. I do not mean, of course, that he will make any conscious inference from what he reads to a general philosophical theory that all values are subjective and trivial. The very power of Gaius and Titius depends on the fact that they are dealing with a boy: a boy who thinks he is 'doing' his 'English prep' and has no notion that ethics, theology, and politics are all at stake. It is not a theory they put into his mind, but an assumption, which ten years hence, its origin forgotten and its presence unconscious, will condition him to take one side in a controversy which he has never recognized as a controversy at all. The authors themselves, I suspect, hardly know what they are doing to the boy, and he cannot know what is being done to him. 

CS Lewis, The Abolition of Man, Chapter 1 ("Men Without Chests") (1943).

Monday, March 2, 2015

Podcast on Oral Argument in EEOC v. Abercrombie & Fitch

My colleague, Mark Movsesian, and I have a new podcast up on the Supreme Court oral argument last week in EEOC v. Abercrombie & Fitch. We discuss the background of the case, the Tenth Circuit decision, the oral argument, and then we offer some views about the implications for religious accommodation more broadly and predict the outcome.

Sunday, March 1, 2015

What makes a school Catholic?

 

My posting today follows a thread developed over the past few days by Professors Rick Garnett and Kevin Walsh. Further catalysts for what I present today are the recent deaths of Professor Charlie Rice and Fathers Richard McBrien and Ted Hesburgh who dedicated their lives to the academy that identifies itself as Catholic. Regardless of personal differences on specific issues, we all share a common project of education that uses the principal modifier Catholic. Regardless of the level of education—be it primary, secondary, tertiary, post-graduate, or professional—the Church has had a long history and therefore a long participation in education. In the present political, social, and legal climates, there has been and will likely continue to be a good deal of discussion about Catholic education as Rick’s and Kevin’s postings inform us.

Recent news items have brought up many facets of the central topic of Catholic education. By way of illustration, these subjects include: the tussles between Archbishop Cordileone of San Francisco and various political, social, and cultural interests based in California and elsewhere; the concerns focused on Notre Dame’s review of the core curriculum and the role of the theology (and perhaps philosophy) requirement(s); the ability of any Catholic institution to hire (and fire) for mission; and, the concession by some institutions (e.g., Creighton and Notre Dame) to grant marital and family benefits to faculty and staff who are in same-sex relationships. As I have indicated, this list is not exhaustive, but it covers some of the more prominent and current controversies intersecting the Catholic institution of education.

Today I argue that these and other controversies emerge from a fundamental misconception of the role of the Church in institutions considered by many as a part of the Church. The list of institutions especially includes educational bodies. One major contributing factor to the existence of these disagreements and disputes is a misunderstanding of Conciliar texts of Vatican II that “the Church has always had the duty of scrutinizing the signs of the times and interpreting them in the light of the Gospel.” (Gaudium et Spes, N. 4) The misconstructions of this phrase have led many to think that the Church needs to conform to contemporary norms rather than to study and evaluate carefully and objectively the claims posed by these modern norms. I subscribe to the latter interpretation which I submit is supported by the use of the word scrutinizing and the phrase interpreting them in the light of the Gospel that appears in Gaudium et Spes (the Latin text reads: per omnes tempus Ecclesiae officium incumbit signa temporum perscrutandi et sub Evangelii luce interpretandi) This provision of Gaudium et Spes recognizes that the Church has a fundamental task of continuing the work begun by our Lord and Savior Jesus Christ who “entered this world to give witness to the truth, to rescue and not to sit in judgment, to serve and not to be served” (opus ipsius continuare Christi, qui in mundum venit ut testimonium perhiberet veritati, ut salvaret, non ut iudicaret, ut ministraret, non ut sibi ministraretur). Much attention has been paid to the idea of “who am I to judge?” uttered by Pope Francis and which is suggested in this last passage quoted from Gaudium et Spes. Pope Francis has indeed been the catalyst of some interesting interpretations about not judging others. But any of us, be we clerical, religious, or lay who are or claim to be disciples of Christ have the sacred trust to evangelize the world in an authentic fashion. The objective of this claim is found in our fundamental prayer taught to us by Jesus: it is God’s will, not mine or yours, that is to be done. Doing the will of God is not judging but acting on the commission our Lord gave to us in Baptism. I shall return to this point later.

But I now return to a central matter that Rick and Kevin have introduced. One way of considering an important issue that they have presented is by asking the question: what makes a Catholic school—regardless of the level of education—Catholic?

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"John Paul II and the Crisis of Modern Times"

Check out this event, featuring Prof. Russell Hittinger, at Lumen Christi, in Chicago.  If you can attend, then do!

This lecture will compare the great pontificates that represented two “modern times”: Leo XIII at the end of the 19th century and John Paul II at the end of the 20th. Between Leo’s birth in 1810 to JPII’s death in 2005, the lived experience of these two men encompass all modern times, both secular and ecclesiastical – from Napoleon to the iPhone. What was at stake for the Church over the course of this rapidly changing century? How did the social teaching of these two popes differ in addressing the modern crises of their day?

Cromwell, ISIS, and "Wolf Hall"

Picking up on a topic that Michael Moreland addressed a few years ago . . . It's not a surprise, I suppose, that the novel and TV series "Wolf Hall" are popular.  Somehow, it had to happen that the Man for All Seasons image of St. Thomas More be torn down.  After all, a Catholic who stood up to the overreaching claims of state power, at the cost of his life, could not be allowed to remain a secular hero forever.  Still, I hope "Wolf Hall" fans and producers will remember some of the points raised in this piece, about Henry, More, Cromwell, and "the biggest land-grab and asset-strip in English history."

Saturday, February 28, 2015

Randy Boyagoda on Fr. Neuhaus

Prof. Randy Boyagoda is the author of a new biography of Fr. Richard John Neuhaus, A Life in the Public Square.  I'm excited to read it.  Here is a bit of a preview, which ran the other day in the Wall Street Journal.   A taste:

Neuhaus . . . affirmed the core premise of Enlightenment political thought: the differentiation of public authority into separate, autonomous spheres that valued individual rights.

He argued that the strongest support for these rights came from the Judeo-Christian tradition’s foundational conviction: We are made in the image of God. Demanding absolute obedience to political dictates, whether in the name of God or something else, would undo centuries of political progress, and goes against God’s own gift of free will to every human person.

Remembering Prof. Charles Rice

Richard beat me to it, but my friend and colleague Prof. Charles Rice -- a deeply good and generous man -- passed away this week.  It's almost as if this Notre Dame Law School legend -- he has probably taught half of our living alumni -- ducked out of the side exit, to avoid making a big scene, overshadowed in the press (though not, I feel confident, among the Heavenly Host) by Fr. Hesburgh's death.   (Learn more about his work and  life here.)

I first encountered Notre Dame through Charlie.  In the 1970s, my father -- then an Alaska lawyer -- attended a seminar at which Charlie presented on defending pro-life protesters.  Years later, when I was thinking about law school, Charlie contacted me (I've always assumed at my dad's suggestion) and was (as always) generous and helpful.  Later, when I started thinking about the legal academy, some of the most important people who shaped my decision were Charlie and his son-in-law, Seamus Hasson, founder of the Becket Fund and all-around religious-freedom hero.  

Charlie was, of course, a titan in the pro-life movement, both locally and nationally.  He was also a teacher beloved by many thousands -- some of whom agreed with his politics, many of whom I am sure did not -- who would always go the extra mile to help a student or graduate in any way.  He cared much more about decency and solidarity than about prestige and praise.  He welcomed me to Notre Dame and supported and encouraged me when I was getting started.  He wrote several books and piles of articles for a range of audiences.  Often overlooked, unfortunately, is a really good (and prescient!) book he did more than 50 years ago, The Freedom of Association.He was a boxer and a Marine.  He helped build a wonderful family.  God bless him.    

Fr. Hesburgh on Newman, universities, Catholic universities, and theology

It's really hard to imagine putting the point better.  And, talk about timely!  Here's Fr. Ted, more than 50 years ago:

Someone asked me recently: "What is the great problem for the Catholic university in our modem pluralistic society?" I was obliged to answer that the modernCatholic university faces a dual problem. First, because everything in a pluralistic society tends to become homogenized, the Catholic university has the temptation to become like all other universities, with theology and philosophy attached to the academic body like a kind of vermiform appendix, a vestigial remnant, neither useful nor decorative, a relic of the past. If this happens, the Catholic university may indeed become a great university, but it will not be a Catholic university.

The second problem involves understanding that while our society is called religiously pluralistic, it is in fact, and more realistically, secularistic—with theology and philosophy relegated to a position of neglect or, worse, irrelevance. Against this strong tide, the Catholic university must demonstrate that all the human problems which it studies are at base philosophical and theological, since they relate ultimately to the nature and destiny of man. The Catholic university must strive mightily to understand the philosophical and theological dimensions of the modern problems that face man today, and once these dimensions are understood, it must show the relevance of the philosophical and theological approach if adequate solutions are to be found for these problems.