Sunday’s print edition of the Boston Sunday Globe has an interesting article by Professor Paula Monopoli who teaches at the University of Maryland’s Carey School of Law. The complete essay is entitled “Bail out law schools, but only with strings attached.” The online edition of her essay is here. For readers of the Mirror of Justice, I point out that the print edition of this issue of the Globe has many challenging articles on the evolution and status of tertiary and post-tertiary education of the present age.
In commenting on the current state of legal education, Professor Monopoli opines that law schools as the one-time “cash cows” of many universities are now dependent on their mother institutions for economic survival. She notes, and I largely agree with her on this point, that the dramatic modifications of legal education over the last several decades which have moved from large classroom courses to small seminars and clinical instruction have clearly increased expenses. While I am not opposed to seminars and clinics, I do not think that large courses should have been dispensed with as they have been on many fronts in today’s legal education. Moreover, I think that there is a Catholic take on what legal education could and should still be doing that has an influence on the problems which Professor Monopoli brings to light.
First of all, many if not most law schools have abandoned the fundamental core curriculum of year-long 1L courses of property, contracts, torts, civil procedure, and Constitutional law or criminal law. Most have been abbreviated to semester-long courses. Considering the nature of the law and the time needed to think about the law’s essence—to say nothing of learning something about good legal reasoning—is much harder to do in the abbreviated courses. Similar things have happened to core courses in the second and third year which may be highly recommended today but not necessarily required.
I hasten to add here that I am not endorsing the traditional curricula simply because they were traditional. My endorsement of the traditional curricula goes deeper. No matter how bright, how eager, and how zealous to serve humanity, law students need both skills, intellectual development, and the cultivation of moral bearings that can come from a well-administered traditional legal education. To be called on at random in order to address issues and postulate about how far a judicial opinion, statute, or regulation can be interpreted is a life-long skill that was too easily and quickly dismissed. To do these things in front of one’s teacher and a class of a hundred, more or less, students was not intended to be a form of humiliation but, rather, a technique to explain and advocate a well, objectively reasoned principle that could serve the common good. Moreover, the fact that a student has already recited once does not mean that the same person won’t be called on again. In their practicing lives, lawyers must always be prepared to learn, think, explain, and serve.
Professor Monopoli says in her article a few words about the development of faculty, too. She opines that there is a need for something beyond the JD degree for a prospective law teacher. While she does not offer much detail in this regard nor does she mandate that all faculty must have a Ph.D., she argues that there is a need for some kind of increased intellectual development. In this context, she suggests the development of “academic research skills like empirical methods.” This or other work in “statistical analysis would add intellectual rigor.” These are particular ways of training legal academics, but I suggest that there are other important, perhaps even vital, formation attributes that she does not mention.
These would include faculty who are well-read in the history and philosophy of law. Why do we have laws for civil society? What should they be promulgated to do? Are they merely a means to control, or are they methods for bringing the indispensable order to the liberty we all desire? Too many lawyers, judges, legislators, administrators, and law faculty argue or suggest that law and morality are separate institutions. With this last proposition I disagree. The law is, first and last, a moral enterprise that helps people, in spite of their differences, to live harmoniously, peacefully, prudently, honestly, charitably, and fraternally. When the law, its making, its administration, and its adjudication do this, the common good is near.
Another challenge for legal education which claims to be Catholic is the pressing need to ask the big question of “what’s it all about?” By not being timid to raise this issue, teachers and students who will enter some aspect of the legal profession will realize that the human person has a destiny other than the secular good-life, nirvana-on-earth which is often the standard offering found in today’s legal academy. If this question is pursued with regularity, such a legal education would be worth offering and pursuing. If it is not, the attraction of going to law school becomes less evident and, therefore, less appealing in the present climate.
A lot more can and needs to be said about these and related matters, but I shall stop here for today.
Alas, the advance of my cancer has necessitated my departure from the post-tertiary education tasks of the work and duties of American and Catholic law school and the accompanying university life, but perhaps there are those who find merit in what I have said and are willing to give it another try. If they do, perchance there will be no need for bailing out their schools.
In August 2012, Robby George recommended (here) an article by a former student of his, Matthew O'Brien--an article on political liberalism and same-sex marriage--that had just been published in the British Journal of American Legal Studies. A response to O'Brien's article has now been published, also in the British Journal Of American Legal Studies, by Greg Walker of Cardiff University (Wales, U.K.). The title: Rawls, Political Liberalism, and the Family. Walker writes, in an e-mail message to me, that his response "demonstrates deep flaws in O'Brien's reading of Rawls and of aspects of U.S. constitutional law." Walker's article is available here.
It is with nearly inexpressible joy that I welcome the news that Daniel I. Mark of Villanova University has been appointed by Speaker of the U.S. House of Representatives John Boehner to the U.S. Commission on International Religious Freedom. Professor Mark is an outstanding young scholar of legal and political philosophy. I am proud to say that he was my student at Princeton both as an undergraduate and a Ph.D. candidate. The formal oral defense of his doctoral dissertation, which was on the justification and nature of legal and political authority, was the most brilliant I have witnessed in twenty-nine years of teaching. As a student, Daniel was a leader of the campus pro-life and pro-marriage groups, as well as President of the Center for Jewish Life. He was a tremendous force for good on our campus. As Chairman of the U.S. Commission on International Religious Freedom, I look forward to introducing Daniel to his new colleagues and working with him to advance the cause of religious liberty across the globe. Speaker Boehner has made a splendid choice. Kudos to him. Bravo to Daniel.
One occasion of on-the-job satisfaction for an intermediate federal appellate judge must certainly be when one's circuit-level dissent is vindicated by a Supreme Court majority. Among the judges whose lower-court dissents were vindicated by the Town of Greece ruling are two whose decisions I have long followed: Judge Paul Niemeyer of the Fourth Circuit (for whom I clerked from 2002-2003) and Judge Richard Posner of the Seventh Circuit (about whom I recently co-authored a paper with Marc DeGirolami). Also vindicated are two other Seventh Circuit judges whose opinions are always worth reading: Judge Kenneth Ripple and Judge Frank Easterbrook.
Justice Kennedy's opinion for the Court in Town of Greece adopts a very similar approach to that advocated by Judge Niemeyer in his dissent in the Fourth Circuit legislative prayer case of Joyner v. Forsyth County. As I wrote in an earlier post on Joyner v. Forsyth County, the Fourth Circuit's decision seemed to be "a strong candidate for Supreme Court review." At the time, there was a circuit split between the Fourth and Eleventh Circuits, but the Second Circuit had not yet decided Town of Greece. The Supreme Court denied certiorari in Joyner v. Forsyth County in January 2012. This earlier cert denial takes nothing away from Judge Niemeyer's jurisprudential vindication. But it also meant that Forsyth County finally lost its case. And that meant payment of $248,000 in costs and attorneys' fees. As it turns out, the County never should have had to pay that money. (Or, more precisely, the ACLU and others never should have received it; the County's share was covered by a private consortium.)
The similarities between Judge Wilkinson's and Justice Kagan's description of how Americans should relate to their government are striking. Consider Judge Wilkinson's discussion of the importance of process in legislative bodies and courts, and how process can promote national unity:
Unity contemplates not some unattainable ideal of homogenization, but that we as a people afford process—that is to say opportunity—for those whose views and perspectives we may not share. When I hear someone say, “We are a Christian nation,” that is not right. We are a nation that respects the expression of all religious faiths, including the faith of our Muslim friends. It is that process, that bedrock opportunity for expression of difference, that promotes unity through diversity, and it is that ideal of process that must animate both courts and country.
Judge Wilkinson did not write this passage with specific reference to legislative prayer, but its application to that setting is straightforward. This theme in Wilkinson's extrajudicial lecture appears judicially in Joyner v. Forsyth County, a legislative prayer case from North Carolina in which Judge Wilkinson's opinion for a split panel of the Fourth Circuit resolved the case much as Town of Greece would have been resolved if Justice Kagan's dissent had carried the day. One can see explicit overlap between the two in a parenthetical quotation from Judge Wilkinson's Joyner v. Forsyth County opinion quoted in Justice Kagan's Town of Greece dissent:
If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. See Joyner v. Forsyth County, 653 F. 3d 341, 347 (CA4 2011) (Wilkinson, J.) (Such prayers show that “those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith”).
Consider also Justice Kagan's discussion of how greater efforts at including different faiths on a rotating basis would have made a difference in Town of Greece:
When one month a clergy member refers to Jesus, and the next to Allah or Jehovah ... the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed. So Greece had multiple ways of incorporating prayer into its town meetings—reflecting all the ways that prayer (as most of us know from daily life) can forge common bonds, rather than divide.
But Greece could not do what it did: infuse a participatory government body with one (and only one) faith, so that month in and month out, the citizens appearing before it become partly defined by their creed—as those who share, and those who do not, the community’s majority religious belief. In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen, irrespective of religion.
And here is Judge Wilkinson making a similar point in the conclusion of his opinion's analysis: "[C]itizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all."
While there are substantial differences between Judge Wilkinson and Justice Kagan in many other doctrinal areas, in this area they share a similar outlook. One might say that, jurisprudentially, they are of "different creeds" but "are in the end kindred spirits."
(For more analysis of Judge Wilkinson's approach to judging in constitutional cases (including a discussion of the limits of "judicial restraint" as a label) and a discussion of the relationship between extrajudicial and judicial writing, see this law review article (forthcoming in Notre Dame Law Review) that I co-authored with Marc DeGirolami.)
The Robbins Collection at U.C. Berkeley recently convened a marvelous symposium on the vexed topic of implementing religious law in modern nation-states. The invited symposiasts were asked to speak from their respective traditions, which were Christian, Jewish, and Muslim. The resulting conversation was richly clarifying and instructively inconclusive on points of cross-tradition import. My contribution to the symposium is here.
Here is my contribution to the SCOTUSblog symposium on the Town of Greece case. Here is a bit:
On June 27, 2005 – the last day on the bench, it turned out, for both Chief Justice Rehnquist and Justice O’Connor – the nine Justices managed to issue ten opinions regarding two challenges to public displays of the Ten Commandments. They disagreed about premises, precedents, methodology, and results, and their work seemed to confirm the widely held view that the Court’s Establishment Clause “jurisprudence” was in “disarray,” was in “shambles,” and was a shuffling “ghoul.”
Those who hoped that nine years and four new Justices might fix the problem were, probably, disappointed by the opinions, even if not the outcome, in Town of Greece. True, the opinion-count dropped to five, and the Justices professed a welcome, even if not entirely convincing, unanimity with respect to the permissibility-in-theory of legislative prayer and the continuing authority of Marsh v. Chambers. But, as to the heart-of-things questions about the meaning of the Establishment Clause and the Court’s role in enforcing it through the development and application of judicial doctrines, the Justices seem to have served up – as Prof. Paul Horwitz put it, in his The Agnostic Age – yet another “dog’s breakfast.” The controversial-but-still-bar-review-black-letter Lemonand endorsement tests were not applied, or clarified, or rejected — just ignored. Now as before, when it comes to public-religion cases, no single “test” controls, no one factor is decisive, and not much confidence is warranted about the outcome of the next case. . . .
It is not clear . . . why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible. Several years ago, in an overlong and excessively annotated law-review article, I attempted to show that they should not be. I reviewed in detail the genealogy of the political-divisiveness inquiry and concluded, among other things, that there is something unsettlingly undemocratic about the notion that the First Amendment authorizes courts to protect us from “confusion” or privileges judges’ sense of political “urgency.” After all, and as Chief Justice Burger conceded in Lemon, “political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government.” Judicial squeamishness regarding messy politics is not a reliable constitutional benchmark, and judicial observations or predictions of “political division along religious lines” are not enough to make controversial policies unconstitutional.
It is true that excessive polarization, disagreement, and division in a political community can be unsettling. It is also true that one way to avoid “political divisiveness along religious lines” is to constitutionalize, as we did, a rule prohibiting “law[s] respecting an establishment of religion.” (Another way, Justice Alito suggested in his concurrence, recalling the First Continental Congress, might be to join together in prayer.) It is also worth remembering, though, the challenges and risks that attend what Justice Kagan called “the distinctively American project . . . of creating one from the many, and governing us all as united.” We should, as John Courtney Murray once put it, “cherish only modest expectations with respect to the solution of the problem” — and, in particular, with respect to the Court’s ability to solve through Establishment Clause decisions, the problem — “of religious pluralism and civic unity.”
One last expository post on Town of Greece v. Galloway, this one on Justice Thomas's concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas's concurrence.
The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas's view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause's incorporation was simply assumed, wrongly and without argument, in the Everson case.
Some discomfited attention is being paid to Justice Thomas's statement that "[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion." How could he only say "probably"?! There is an explanation, albeit one that depends on coming at the issue from the angle of the concurrence. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian Donald Drakeman. One of the primary claims in Drakeman's book is that there is enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)--uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause's historical meaning. Here is Drakeman at 260 (the portion of his book cited by Justice Thomas):
The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a "national religion." The First Amendment thus succeeded in turning the hotly contested subject of church-state relations--which had already caused legislative battles in the states and would continue to do so virtually in perpetuity--into a "milk and water" amendment by focusing on the one thing no one wanted and everyone could unite against: a "Church of the United States." There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.
Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it--as a federalism provision--then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements.
Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is "coercion of religious orthodoxy and of financial support by force of law and threat of penalty." Note that here there is a kind of unity with Justice Scalia's view of the scope of protection afforded by the Free Exercise Clause. This "actual legal coercion" test--which the Justices distinguish from a "subtle coercive pressures" test (see Lee v. Weisman) involves the exercise of government power "in order to exact financial support of the church, compel religious observance, or control religious doctrine." It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy's opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).
Over at the The Weekly Standard, Adam White picks up and expands insightfully on Justice Kagan’s comments about the nature of American citizens’ relation to their government, which I had noted here. I had not known about Teddy Roosevelt’s remarks concerning “hyphenated Americans.” Here’s a bit from Adam’s post:
On the other side of this spectrum, at its far extreme, we find Teddy Roosevelt’s famous criticism of “hyphenated Americans“:
What is true of creed is no less true of nationality. There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all. This is just as true of the man who puts “native” before the hyphen as of the man who puts German or Irish or English or French before the hyphen. Americanism is a matter of the spirit and of the soul. Our allegiance must be purely to the United States. We must unsparingly condemn any man who holds any other allegiance. But if he is heartily and singly loyal to this Republic, then no matter where he was born, he is just as good an American as any one else.
Roosevelt reiterated a year later, “let us be Americans, nothing else.” Such sentiments find echoes, perhaps distant, in Justice Kagan’s dissent—at least when she urges each American citizen “performs the duties … of citizenship … not as an adherent to one or another religion, but simply as an American.”....
These considerations cut across partisan and ideological lines because there is at least a kernel of truth at each extreme. Americans should not stand before their government exclusively as representatives of particular “little platoons.” But it would be just as mistaken to race to the other end of the spectrum and assert that Americans must strip themselves of all prior attachments and experiences before engaging the public arena—leaving us with, in Father Richard John Neuhaus words, a “naked public square.”
I am not saying that Kagan intended to imply that our public square is and ought to be “naked.” Far from it—if anything, I suspect that she was just a little bit too casual with her opinion’s specifics. (In that respect, she would be in good company lately.)
But even if Justice Kagan was just speaking a little too casually, her casual overstatement is an interesting one.
In this post, I'll offer a few comments on Justice Kagan's principal dissent in Town of Greece v. Galloway, which was joined by Justices Breyer, Sotomayor, and Ginsburg (Justice Breyer also dissented separately). I'll also briefly consider Justice Alito's concurrence, which takes on some of the points in the main dissent. I should add that in these posts I am only describing what I take to be notable features of these opinions. I am not intending to evaluate them on the merits, with one small exception at the end of this post. I am thus leaving to the side Tom's (as usual) deeply thoughtful and excellent comments and reservations about the decision (for the moment, at least!), simply in order to figure out first what is or might be happening in the decision.
The most unexpected feature of the dissent is that it accepts the traditional frame propounded by the majority. The dissent explicitly repudiates strict separationism: "I do not contend that principle [of religious equality] translates here to a bright separationist line. To the contrary, I agree with the Court's decision in Marsh v. Chambers upholding the Nebraska legislature's tradition of beginning each session with a chaplain's prayer." Justice Kagan makes a point later of saying that she thinks Marsh was correctly decided. Indeed, not a single justice of this Court accepted the Brennan/Marshall position in Marsh.
That's remarkable, inasmuch as Marsh is frequently described in rather unflattering terms by many of my esteemed colleagues: outlier, carve-out, aberration, inconsistent with the doctrine, unprincipled, a vestige of a bygone age--these are generally representative of the legal academy's dim view of Marsh. And, indeed, it is true that Marsh seems to stand alone against the coursing flow of modern establishment doctrine. Here was a chance for those members of the Court that felt something like this way about Marsh, or worse, to say so--to take a stand in favor of lopping off this traditionary annoyance without very much hurt at all to the primary stream of contemporary establishment doctrine. Yet nobody did.
Instead, the methodological path of the dissent is to accept the traditional frame and then to argue that the facts in this case do not fit within a correct interpretation or reading of that tradition: "And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Where I depart from the majority is in my reply to that question....[T]he prayer in Greece departs from the legislative tradition that the majority takes as its benchmark." The primary claim of the dissent is that the facts of this case are distinguishable in three ways from Marsh (legislative prayer prior to Marsh is not emphasized by the dissent). First, because the town too closely aligned itself with Christianity and therefore gave Christianity an official government imprimatur. The town engaged in "religious favoritism." Second, because the town meeting is a "hybrid"--the situation here is a "citizen-centered venue" (prayers "directed squarely at the citizens") where the venue in Marsh was legislator-centered. And third, because the town officials were insufficiently inclusive and did not make adequate efforts to include non-Christian prayers. These three factual differences, Justice Kagan writes, "remove this case from the protective ambit of Marsh and the history on which it relied." It also seems that the dissent approves the holding of the Fourth Circuit in Joyner v. Forsyth County, authored by Judge Wilkinson, which is interesting in its own right. That is more evidence that the traditional frame controls the dissent. For more on that case and related issues, see Part II(C) of this paper.
Justice Alito's concurrence responds to the dissent but it is largely a response that disputes factual issues--the reasons for the town's predominantly Christian prayers, the degree of inclusivity that should pass constitutional muster, the proper characterization of Marsh, and so on. The traditional frame is operative here as well.
Finally, one point of commentary, which I jot down as a suggestion and only because it was such a central part of the rationale underlying Justice Kagan's dissent. In describing "the country we are," Justice Kagan writes:
Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture....They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose....In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen, irrespective of religion....When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another.
That's an interesting set of statements and it echoes something that Justice Kagan said at oral argument--that “when we relate to our government, we all do so as Americans,” not as religious or non-religious individuals. I wonder whether all agree with this view. I'm not sure that I do. I understand it to be emphasizing and praising equality before the law, and that is certainly a commendable and important ideal. But an alternative position--and one, I think, entirely consistent with the general principle of "pluralism and inclusion" championed by the dissent--is that "when a citizen stands before her government," she brings to that encounter the full panoply of communal, institutional, associational, and religious commitments and bonds that have characterized the lives of some of the very best citizens of this country, past and present.
