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 3, 2014

His saltem accumulem donis, et fungar inani munere. (Story, J., quoting Virgil re: Marshall)

The 1837 Term of the Supreme Court was a hard one for Justice Joseph Story. His mentor and friend, the great Chief Justice, had died, and the Taney Court was tacking away from John Marshall's course. Story's dissents in some of the cases that marked the clearest departures from Marshall's jurisprudence are personal and powerful. Perhaps the most poignant is his dissent in Briscoe v. Bank of Kentucky, 36 U.S. 257 (1837). The concluding paragraph:

I am conscious, that I have occupied a great deal of time in the discussion of this grave question; a question, in my humble judgment, second to none which was ever presented to this court, in its intrinsic importance. I have done so, because I am of opinion (as I have already intimated), that upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent. I have another and strong motive-my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional; I have felt an earnest desire to vindicate his memory from the imputation of rashness, or want of deep reflection. Had he been living, he would have spoken in the joint names of both of us. I am sensible, that I have not done that justice to his opinion, which his own great mind and exalted talents would have done. But with all the imperfections of my own efforts, I hope that I have shown, that there were solid grounds on which to rest his exposition of the constitution. His saltem accumulem donis, et fungar inani munere.

The concluding lines are from Virgil's Aeneid. They express an intent to honor the revered deceased with one's perhaps futile labors. Some translations: 

  • "let me at least bestow upon him those last offerings, and discharge a vain and unavailing duty" (Routledge Guide to Latin Quotations)
  • "these offerings at least let me heap upon my descendant's shade, and discharge this unavailing duty" (Rivington et al. 1821)
  • "this unavailing gift at least I may bestow" (Dryden)

Query this

When a monarch formally -- but not functionally -- vacates his palace only to occupy -- perhaps along with his considerable staff -- the rooms formerly reserved for guests in, say, the guesthouse, who benefits?  And why?  

"The lavish homes of American archbishops"

CNN has the story.

Roger Sherman on religious objection both to bearing arms and to "getting substitutes or paying an equivalent"

In reading over accounts of various debates in the First Federal Congress, I came across an interesting description by Congressman Roger Sherman of the nature of the religious objection that some had to bearing arms. The context is debate over proposed wording of a part of the Second Amendment that did not make it into the final version. The proposed amendment stated: "A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms." 

Sherman opposed inserting the non-compulsion language into the Constitution, in part because the states would be able to govern the militia and would not so arbitrarily. The point here is not to describe the debates over this language in full but simply to take note of the nature of the religious objection as described by Sherman. That objection, in Sherman's view, extended not only to being personally compelled to bear arms but also to personally obtain a substitute or pay an equivalent. Sherman stated: "It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other ...." (Congressional Register, August 17, 1789)

The situations are not entirely parallel, but we can see in this description of religious objections some similarities to the current debates over the HHS contraceptives mandate. Many of those who object to including the coverage explicitly in their plan also object to "getting substitutes or paying an equivalent." Some view this religious moral judgment as wrong or misguided, while others think it inapplicable to the "accommodation" (which the Administration has suggested is going to change yet again). As Sherman's description shows, however, this kind of objection to getting a substitute to do what one cannot do directly is hardly unprecedented. 

Friday, August 1, 2014

Divisive Words and Threats to Unity: Political and Cultural

The divisions that exist among us in the United States, in both political and cultural terms, and that seem to be widening and threatening our core unity as a nation, do reflect some fundamental differences of perspective and on principles of good governance and how best to enhance human thriving. Nonetheless, inflammatory accusations, name-calling, and hyperbolic rants add inestimably to that division. Especially worrisome is what appears to be the near-universal tendency to assume venality in the hearts of those on the other "side" of a partisan/political/ideological/cultural/religious divide. Peggy Noonan today in the Wall Street Journal, in her typically thoughtful and common-sense style, writes about the special responsibility of those in political leadership not to indulge in such rhetoric. Here is an excerpt:
No nation's unity, cohesion and feeling of being at peace with itself can be taken for granted, even ours. They have to be protected day by day, in part by what politicians say. They shouldn't be making it worse. They shouldn't make divisions deeper.
In just the past week that means:
The president shouldn't be using a fateful and divisive word like "impeachment" to raise money and rouse his base. He shouldn't be at campaign-type rallies where he speaks only to the base, he should be speaking to the country. He shouldn't be out there dropping his g's, slouching around a podium, complaining about his ill treatment, describing his opponents with disdain: "Stop just hatin' all the time." The House minority leader shouldn't be using the border crisis as a campaign prop, implying that Republicans would back Democratic proposals if only they were decent and kindly: "It's not just about having a heart. It's about having a soul." And, revealed this week, important government administrators like Lois Lerner shouldn't be able to operate within an agency culture so sick with partisanship that she felt free to refer to Republicans, using her government email account, as "crazies" and "—holes."
All this reflects a political culture of brute and mindless disdain, the kind of culture that makes divisions worse.
To call ourselves political leaders would be to flatter ourselves and over-estimate the influence of the Mirror of Justice. Nonetheless, we too need to be conscious of the effect that incivility in the "blogosphere" -- and especially the too easy attribution of malice and bad motives to others -- weakens the civil ties that can and should still bind us and that are necessary to any meaningful work toward the common good.

Thursday, July 31, 2014

Justice Ginsburg on the five male Justices' "blind spot" in Hobby Lobby, and the influence of daughters on their fathers

Justice Ginsburg's recent interview with Katie Couric is getting a lot of attention. One Yahoo! write-up focuses entirely on Justice Ginsburg's dissent in Hobby Lobby. The accompanying five-minute clip is worth watching. One of the more interesting exchanges was Justice Ginsburg's expressed belief that the "five male justices" (in the words of Couric's question) had a "blind spot" (Ginsburg's words, repeated by Couric, and affirmed by Ginsburg) in Hobby Lobby. The same five justices also had a blind spot, Justice Ginsburg volunteered, "in Lilly Ledbetter's case." (Transcript of exchange below the jump.)

This kind of identity-based attribution is problematic in its own right. Think about how this might work in reverse. There were parties on both sides of what Justice Ginsburg calls "Lilly Ledbetter's case." Should the other party have been worried that Justice Ginsburg would be partial to Lilly Ledbetter because the two are women? I don't think that would make too much sense (as opposed to worrying about Justice Ginsburg's perception of the merits because of her ideology and jurisprudence). Would it not be offensive to attribute Justice Ginsburg's Ledbetter vote to a "soft spot" for women, in a manner analogous to Justice Ginsburg's attribution of the Hobby Lobby majority's decision to a "blind spot" for women? Of course it would. 

Justice Ginsburg's comment on the five male Justices in Hobby Lobby also reveals a couple possible blind spots of her own. One comes from her Supreme-Court-centric view of the issues in the case. Numerous female federal judges have entered injunctive relief of one sort or another for plaintiffs challenging the contraceptives mandate. What explains their votes? Is the reasoning of Justice Samuel Alito and his brethren in the Hobby Lobby majority any better or worse, for example, when prefigured by the reasoning of Judge Diane Sykes (7th Cir.) or by the analysis of Judge Lee Rosenthal (S.D. Tex.)?

Another apparent blind spot emerged in Justice Ginsburg's description of the legal basis for Hobby Lobby. It is easy enough to pass off as a minor slip her characterization of the decision as involving the "constitutional right" of employers to act as Hobby Lobby did. But "it's just a verbal slip" became less likely when Justice Ginsburg went on to say that the majority had incorrectly interpreted the Free Exercise Clause. Does Justice Ginsburg have a blind spot for RFRA and the congressional judgment embodied in that super-statute? That statute, and not the Free Exercise Clause, is the basis for the Hobby Lobby decision. 

Having disagreed with the gist of Justice Ginsburg's discussion of Hobby Lobby, I would like to end on a note of partial agreement. As the father of three daughters, although not a federal judge, I am sure Justice Ginsburg is right, as a general matter, that "daughters can change the perceptions of their fathers." I am less certain, though, about her deployment of that assertion in this context. Justice Ginsburg may have been thinking about this recent paper by Adam Glynn and Maya Sen. Their analysis of votes by federal circuit court judges indicates that, in their words, "conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion than judges who have only sons."

As with much empirical research on lower court judges, it is unclear (at best) whether the results can be used to explain the behavior of Supreme Court Justices. But if we're going to go down this road, it may be worth noting that four of the five justices in the Hobby Lobby majority have daughters. Justice Scalia alone has more daughters (four) than all four dissenting justices combined (three). Chief Justice Roberts, Justice Kennedy, and Justice Alito each have one daughter. 

 

Continue reading

More on Embassy to the Holy See Roundtable

Yesterday I blogged about the Roundtable Discussion co-hosted by the Pontifical Academy of Sciences, Global Freedom Network, and the U.S. Embassy to the Holy See.  More information has become available about the content of that important meeting which the Embassy described as follows:

[T]he Embassy was proud to co-host with the Global Freedom Network and the Pontifical Academy of Sciences a digital video conference with Luis CdeBaca, U.S. Ambassador-at-Large to Monitor and Combat Trafficking in Persons, to discuss this year’s U.S. Department of State's Trafficking in Persons report. Over 40 representatives from the Vatican, Embassies to the Holy See, NGOs, and media outlets were present to learn about the report and talk about how to improve and increase anti-trafficking efforts.

 

As I mentioned in the earlier post, this meeting exemplifies one of many efforts to bring together different stakeholders to discuss and combat one of the most pressing moral and legal issues of our time.  Of particular interest to MOJ readers may be the comments of Bishop Marcelo Sánchez Sorondo.  Among other things, he comments on this interplay between an overwhelming social problem and the potential for defeating it when religions, governments, and the private sector actors find common ground and act:

Because of the human and moral scandal they mean and interests involved, which lead to pessimism and resignation, many international institutions have turned their backs. This is why the 2014 TIP Report is so important, which we can say was especially motivated by President Obama’s visit to Pope Francis, as confirmed one of the opening photos.

We must thus be grateful to Pope Francis and to President Obama and to Secretary of State John Kerry for identifying one of the most important social tragedies of our times and having enough confidence in democratic institutions to instruct them to be responsible to spot human trafficking, engage our communities, and commit to take action. As you know, after our November workshop, we decided to tackle this issue by founding an interreligious partnership called the Global Freedom Network, which you can read more about on our website www.gfn2020.org

* * *

As religious people we can repeat the words of Pope Francis during the canonization of the Mexican St Guadalupe García Zavala, “this is called 'touching the flesh of Christ'. The poor, the abandoned, the sick and the marginalized are the flesh of Christ. And Mother Lupita touched the flesh of Christ and taught us this behaviour: not to feel ashamed, not to fear, not to find 'touching Christ’s flesh' repugnant. Mother Lupita had realized what 'touching Christ’s flesh' actually means”. Pope Francis’ words are a clear response in the light of Jesus Christ’s message to this new form of contemporary slavery, which constitutes an abhorrent violation of the dignity and rights of human beings.

 

The full text of the Bishop’s remarks, as well as those of U.S. Ambassador to the Holy See, Ken Hackett and U.S. Ambassador At Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca,  can be found here and are definitely worth the read. 

Wednesday, July 30, 2014

Human Trafficking: Responding to the Pope's Appeal

Today is the first UN World Day Against Trafficking in Persons.  To commemorate the day, the U.K. Ambassador to the Holy See, Nigel Baker, has blogged about a roundtable hosted by Pontifical Academy of Sciences, the Vatican-based Global Freedom Network (an initiative of Pope Francis and Archbishop of Canterbury Justin Welby) and the U.S. Embassy to the Holy See.  He has entitled the piece, “Human Trafficking: Responding to the Pope’s Appeal.”  

 

Teaching, writing, and studying Human Trafficking can be a dark subject matter.  This was underscored for me this summer when I taught my Human Trafficking seminar every day in Catholic University Law School’s Rome Human Rights Program – as opposed to once a week as in a regular semester.  I saw that the material became a bit overwhelming to these young adults in the class when faced with such a volume of information at such a fast pace.  It is often difficult to see anything positive in the field.  Yet, this post struck me for two reasons. 

 

First, it is a nice reflective piece on concrete ways governments, religious institutions, and private entities can come together to address a complex social issue.  It is no surprise to me that central in this event was the U.S. Ambassador at Large to Monitor and Combat Trafficking in Person, Luis CdeBaca.  He has done an excellent job of recognizing and including in this movement the work of religious organizations and private entities.   

 

Second, and somewhat unrelated – it struck this Irish woman how amazing it was that a British official was publicly posting a reflection on how we all need to respond to a pope’s appeal for action.  It is not only that one could not have imagined such an act 20 years ago.  One could not underestimate the tension between Catholics and non-Catholic in Britain - less than 7 years ago former British Prime Minister Tony Blair was called a “fool” for converting to Catholicism. 

Yet, today we see unity from across social groups behind this abolitionist movement as reflected in this blog piece.

Therefore, notwithstanding the difficulty in working in this area, there are small rays of hope that great social challenges can be overcome…and Catholic legal and social thought is playing a role.

Sub ubi?

One of the results of MOJ's recent move to the Law Professor Blogs Network is that now a picture of men's underwear for sale often impinges on the retained (and beautiful) image of Our Lady Mirror of Justice.  Perhaps this is the (unintended) application of the schoolboy's Latin pun "semper ubi sub ubi"?  

Addressing the Concerns of Adjunct Faculty

Faced with demands by adjunct faculty to unionize, a number of Catholic colleges and universities have argued that they are not subject to NLRB jurisdiction, claiming an exemption as a "religious employer."  In a piece I wrote for Pepperdine's symposium on The Competing Claims of Law and Religions a couple of years ago, I suggested that, in the case of adjunct faculty, NLRB oversight was not likely to create the kind of entanglement that exemption was concerned with.  I also expressed concern about Catholic institutions of higher education attempting to use the exemption as a shield allowing them to tread adjuncts in ways inconsistent with Catholic social teachings.

Faced with efforts by adjunct faculty to unionize, the University of St. Thomas took a different approach.  University President Julie Sullivan, expressed sympathy for the position of adjuncts, but explained why she thought unionization was not the best way to promote the interests of adjuncts and the university.  Her arguments were apparently persuasive: The NLRB just certified the results of the election that was recently held: 136 opposed and 84 in favor of unionization.

In the immediate aftermath of the the certification, President Sullivan sent an e-mail to all adjunct faculty outlining her plans to address the top-level adjunct faculty priorities identified over the past year.  These include creation of a new Adjunct Faculty Task Force who will work toward better integrating adjunct faculty into the univesity and providing them with a variety of participation options, providing adjunct representation on the faculty Senate, develop proposals for increasing adjunct faculty salaries and working to provide ways for adjunct faculty to participate in the university's benefit programs.

Whether all of this comes to fruition remains to be seen, but it is an enormous step in the right direction.