It has become fashionable in some precincts to disparage America’s concerted and persistent opposition to the geopolitical aspirations and Marxist ideology of the Soviet Union (and later communist China) during the four decades following World War II.
Today, the Cold War is remembered by some as a regrettable period of belligerence by the United States, which depended too much on military force and neglected diplomacy and accommodation as tools of foreign policy. These detractors sometimes portray both sides in the Cold War struggle as morally equivalent, arguing that neither deserved to be characterized as heroes or villains. They dismiss the Cold War as an ancient and melodramatic morality play, having little or no moral implications or continuing political significance.
The events of the past couple of weeks remind us that the Cold War may have grown colder after the collapse of the Soviet Union, but it never truly ended. More importantly, we are reminded again of the noble sacrifices made by tens of thousands of Americans and countless others to secure the blessings of liberty and economic opportunity for hundreds of millions of people across the globe.
The invasion of Ukraine last week with masked soldiers and the effective annexation of Crimea bring to the fore once again the nationalist agenda of Russia. Russian expansionist ambitions have always been with us, though interwoven during the Cold War with the ideological conflict.
Less than a year-and-a-half ago, Republican presidential nominee Mitt Romney claimed during a debate that Russia posed the greatest geopolitical threat. President Barack Obama mocked Romney by saying, “the 1980s, they’re now calling to ask for their foreign policy back because, you know, the Cold War’s been over for 20 years.” (video here). Then-Secretary of State Hillary Clinton remarked that Romney’s comment was “somewhat dated to be looking backwards instead of being realistic” (video here).
No one is laughing today. Indeed, in a rather stunning about-face, Hillary Clinton now compares Russian President Putin’s occupation of the Crimea with Nazi Fuhrer Hitler’s invasion of Czechoslovakia and Romania in the 1930s (here). And no one doubts that Russia will continue to act aggressively, in Ukraine and Georgia and perhaps elsewhere in eastern Europe, when it finds doing so in its interests.
An even more powerful rejoinder to those pundits who denigrate the moral salience of America’s stalwart stand against communism may be found in the release last week by the United Nations of a report on human rights violations in North Korea. The report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea is a sobering reminder of what was at stake in the Cold War.
As reported by CNN (here), the commission’s report offers “a stunning catalog of torture and the widespread abuse of even the weakest of North Koreans.” Murder, torture (of men, women, and children), jailing and slavery for entire families, and mass starvation are widespread in North Korea, keeping an entire nation in submission to the whims of a totalitarian regime that monitors every aspect of human life. As a sadly typical story of cruelty in that communist abyss, one witness described the beating by prison guards of a starving woman who had just given birth, ending with her being forced to drown the baby. The full report is available here (and is horrifying, but should be compulsory, reading).
The UN report also describes the targeted persecution, torture, and murder of Christians (here). The North Korean regime regards Christianity as a “particularly serious threat” because “it ideologically challenges the official personality cult and provides a platform for social and political organization and interaction outside the State realm.”
The UN commission finds that North Korea maintains a brutally repressive regime “that does not have any parallel in the contemporary world.” This portrait of North Korea is a rebuke to the entire world (and especially to China as North Korea’s sole remaining patron), as these atrocities to continue and worsen under the arbitrary rule of Kim Jong Un. As Michael Kirby, the chairman of the UN commission concluded, “We cannot say that we didn’t know. Now we do know.”
What horrors the UN report depicts could well have been the fate of every person living on the Korean peninsula. By the summer of 1950, the communists from the north had conquered 90 percent of the Korean peninsula, including the most populous city of Seoul. Later that year, the daring amphibious landing at Inchon by allied troops (most of them American Marines), led by General Douglas MacArthur, and then stubborn resistance over three more years, turned abject defeat into a fragile and incomplete victory that preserved the independence of South Korea.
Today, some seventy-five million people live on the Korean peninsula. A third of them — those living above the 38th parallel — struggle pathetically for survival in what is effectively a nationwide prison camp. Hunger, fear, arbitrary jailing, torture, and persecution are the daily plight of millions.
The people of North Korea live in darkness, both figuratively and literally. Accompanying this post is a night-side photograph taken from the International Space Station just two months ago — the bright lights to the top demark China and those toward the bottom right are from South Korea, while the dark area in between (that could be mistaken for open ocean) depicts an impoverished and lightless North Korea.
But two-thirds of the Korean people — the fifty million who live in South Korea — participate in a successful democratic government, enjoy a standard of living that rivals that of those of us living in the developed economies of the West, and are free to worship according to their conscience. Don’t tell these millions in South Korea, who escaped the fate of their brothers and sisters to the north, that the painful struggle against communism during the Cold War was not “good versus evil.”
More than 36,000 American soldiers gave their lives during the Korean conflict, perhaps the hottest spot during the Cold War. Theirs was a noble sacrifice that we must never forget or diminish by misunderstanding. Their sacrifice truly counted for something then and even more today. We give thanks for the freedom and prosperity enjoyed in the south — secured by the bravery of men fighting for a just cause. And we grieve for the horror and slavery endured by those in the north, mindful of what could have been the tragic outcome for all — if faith had faltered, if resolve had weakened, and if the war had been lost.
Attorneys for Mark Zmuda, the former Vice Principal at Eastside Catholic High School in Sammamish, Washington, have filed a civil suit against the school and the archdiocese today in King County Superior Court. I have not seen the complaint yet, but it is certain to make claims under the state antidiscrimination statute (RCW 49.60). I understand that lawyers for the school and the archdiocese already have a motion to dismiss prepared.
On cross-examination of an economist testifying on behalf of the state, the plaintiffs' attorney asked: " "Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? In other words, they're going to hell?"
The admission of improper testimony in a bench trial does not matter much in itself, but is this really how the cross-examination of an economist should have been allowed to proceed? I have no special expertise in the law of evidence, but this question about the economist's religious beliefs does not seem relevant, even with respect to trying to prove bias of the sort that one can question expert witnesses about, and the prejudicial value of the testimony in any event would seem to substantially outweigh whatever probative value it might have.
(For whatever it might be worth to note, this was the same trial in which Sherif Girgis was not permitted to testify as an expert witness.)
Tom's post below raises some important issues, but as Kevin says, our paper does not answer in a complete way the question of what constitutes the ideal disposition of the judge. What it does is to direct some attention to the question itself and to reconceptualize the intellectual projects of judges who ostensibly are said to be writing (and at times themselves purport to be writing) about constitutional theory as adverbial projects--projects about the quality of good judging. One might believe that in order to think well about judging, one needs to think first about the qualities, habits of mind, and dispositions of the good judge. But one of the themes of our paper is that interpretive constitutional theory has come so much to dominate scholarly inquiry in constitutional law that it is difficult even to understand other sorts of constitutional projects for what they are.
One of the reasons for this blind spot is methodological. You cannot tell very much at all about the habits of mind of the good judge by asking that judge to reduce to a writing his theory of constitutional interpretation. You won't get the information you are looking for (though you will get the chance to score some easy points and look clever by punching holes in his theory). Instead, you need to examine whom the judge admires, and why, and which "school" the judge aspires to join and be thought within, and which other judges are dispositional compatriots--all projects within the domain of intellectual history. But you also have to compare what the judge does in constitutional adjudication against what he says he does extrajudicially. That is, you need to be a good and careful doctrinalist, not in order to trap anybody but so that you can see the many ways in which constitutional law in practice complicates constitutional theory.
An additional advantage of making the move from theory to disposition is that it permits the scholar to criticize judicial pragmatism and restraint on their own terms--as dispositions rather than as theories of constitutional interpretation--and therefore to engage more directly and more truly with the sorts of projects in constitutional law that interest judges. Part III of our paper does just that. In its final section, we look to the example of Judge Henry Friendly, who was neither a pragmatic judge (here we respectfully disagree with Judge Posner) nor a restrained judge. Indeed, Judge Friendly always resisted such labels and never was particularly interested in what was then the dernier cri of Dworkinian moralism. But what, exactly, did Friendly stand for? The model of lawyerly craft and argument that he represented does little to enrich legal theory, and this has led some academic commenters to wonder whether Friendly will be forgotten by future generations. Perhaps so. But that may say more about the peculiar reputational preoccupations of the legal academy than about the much more interesting question of what dispositions make for a good judge. Lots of work remains to be done in thinking through that question.
Ashgate Press has just published In Search of Common Ground on Abortion, edited by Robin West, Justin Murray and Meredith Esser. The collection of essays, which includes chapters by Lisa Schiltz and by me, stems from a symposium that was held at Georgetown University Law Center in the fall of 2009. The goal of the symposium was to "bring together pro-choice and pro-life scholars in an effort to explore the common philosophical, moral, or political ground that might be shared by thsee groups who so rarely come together." The book does a good job of reflecting the breadth of the symposium.
Tom's comparison of judicial pragmatism and judicial restraint with Niehbuhrian Christian realism shows how it can help to understand each of these as appropriate dispositions when engaging in various forms of practical reasoning. Tom contends that Niebuhrian realism disposes religious and political activists "to combine vigorous advocacy with deep humility." He observes that good dispositions are virtues, and that such virtues "may be more powerful and determinative than the precise logic of analysis." And he concludes by asking about the value of judicial pragmatism and judicial restraint as providing an appropriate disposition toward the activity of judging.
Tom's comments and question helpfully bring to the surface an issue that Marc and I do not resolve in the paper. We speak of Posner and Wilkinson as advocating for particular judicial dispositions as features of judicial excellence. This terminology leads toward understanding the qualities of good judging in virtue-based terms. But we do not explicitly endorse a virtue-based account as against some other type of account. At other times in the paper, we speak in terms of judicial office or judicial role or judicial duty. We do this less to contrast a virtue approach with a deontological approach than to capture an aspect of judging that both pragmatism and restraint rub up against in various ways--the obligation of law. If the law requires something, the judge should neither be pragmatic nor restrained to the exclusion of the requirements of the law. Neither Posner nor Wilkinson claims otherwise. But too strong an emphasis on sensibility or disposition tends in that direction. One can see this in various ways in the cases that we describe in the second part of our paper.
While an emphasis on appropriate judicial dispositions toward constitutional adjudication stands in some tension with an emphasis on the right way to figure out what the law requires, it is nonetheless helpful to recognize the two as distinct. This enables analysts to discuss the contribution and the limits of each type of guide for judges. And when figuring out the right dispositions for judges in constitutional adjudication, it matters that the particular form of practical reasoning at issue is judicial legal reasoning. Appropriate dispositions toward the kind of practical reasoning engaged in by political and religious activists are not the same as appropriate dispositions toward judicial legal reasoning in constitutional cases.
Marc's and Kevin's postings on pragmatism and judicial restraint as dispositions toward judging, rather than directly usable theories, remind me of a parallel argument in Christian social ethics (there probably is one in secular ethics as well). In the early 1980s, Catholic theologian Dennis McCann (DePaul) wrote a book called Christian Realism and Liberation Theology: Practical Theologies in Creative Conflict. In it McCann was appreciative but also critical of the long-dominant (though declining) tradition of Christian realism as exemplified by Reinhold Niebuhr and those following--a tradition that, overlapping with pragmatism, emphasized the complexity and irony involved in many moral/social disputes in a fallen world and the need in many cases to balance conflicting values. McCann concluded that Niebuhrian realism failed to provide more than "disposition" toward social questions. I've always thought that one could draw more from the Christian realist approach than McCann said; but in previous work I've admitted that perhaps the main value of the approach may be to describe and defend a disposition. However, dispositions are important. Good dispositions are virtues, and virtues--the qualities with which we approach intellectual and moral challenges--may be more powerful and determinative than the precise logic of analysis. In an earlier, 1995 law review article on "church-state relations and [Niebuhr's] social ethics," I went through this:
[McCann] argues that after Niebuhr rejected Marxism, he failed to articulate a new “critical social theory” that would guide the choices between conflicting political ideologies; instead, he constructed “not much more than a 'dispositional ethic’ for politicians and social activists.” In other words, Niebuhr beautifully taught activists how to combine vigorous advocacy with deep humility, but left little guidance (other than context-specific judgments) on what actual goals they should seek....
[But] the “dispositional ethic” that Niebuhr sketched for religious and political activists [is] important. Niebuhr vividly taught how to combine vigorous advocacy with deep humility. Achieving that balance is not an easy task in law and politics, but it is one that is crucial. It is especially crucial if, as I have argued, one cannot sidestep the dangers of religious zeal in politics by trying to separate religion strictly from public life. We must look to religious views themselves, as well as secular views, to find reasons to be humble and tolerant even as we engage in political conflict. Humility inculcates the willingness to reach proximate solutions, because we realize the potential for truth in our opponents' perspective and the potential for partiality and complacency in our own. And even when vigor demands that we not compromise, humility inculcates a “sense of pity and forgiveness for those who contend against our truth and oppose our action.”
The combination of vigor and humility is too often lacking in debate concerning the issues of the current “culture wars,” including the issue of how to relate religion and politics. On one hand, citizens who are wary of the certainties proclaimed by activists too often despair of reaching any solutions to intractable social problems. On the other hand, activists on both sides of the culture wars too often display little humility. Both sides need internal voices to do for them what Niebuhr did for his own community of political and religious liberals: to reconstruct their basic commitments while working to purge them of false certainties and utopian illusions.
I think that the recent intensification of the culture wars has shown again the relevance of these points.
So back to Marc and Kevin. Is there an analogous line of thought for their project on judging? I.e. that pragmatism and judicial restraint cannot fill in for substantive analysis of the purposes of the Constitution (or more broadly, of our system of constitutional democracy, or less broadly, of a particular constitutional clause or doctrine). But nevertheless pragmatism and judicial restraint--to the extent that they are correct accounts of judicial virtues--can still be vital and central.
The received wisdom is that, nowithstanding his enormous intellect and brilliance, Justice Frankfurter's overbearing personality in combination with his 'on-the-wrong-side-of-history' position in Minersville v. Gobitis was enough to do him in as an influential voice on the Supreme Court. Gobitis does seem universally reviled; Professor Sherry in this article lists it alongside Plessy v. Ferguson, Buck v. Bell, and some others as among the wrongest of the wrong. Justice Frankfurter has long been associated with judicial restraint in constitutional adjudication, and Gobitis certainly could be classified as a judicially restrained decision. Indeed, it could be taken to support Professor Sherry's thesis--that what we need is more judicial "activitism" and less judicial restraint.
In our article, Kevin and I note how common it is for both Judge Posner and Judge Wilkinson to discuss judicial greatness in constitutional adjudication not by reference to constitutional theory, but instead by considering personalities, styles of thought, dispositions, and character traits. When they talk about judicial excellence, these judges are wont to engage in intellectual portraiture more than abstract theorizing. And we observe that Judge Wilkinson often lists Justice Frankfurter as one of his most admired examples of the "school" (Wilkinson's term--evoking a community of practitioners, such as a school of artists) of judicial restraint--one which Wilkinson claims as his own.
How, then, to explain Justice Frankfurter's widely perceived fall from grace? "The tragedy of Mr. Justice Frankfurter," the historian Melvin Urofsky has written, was that he became "prisoner to an idea--judicial restraint." But if we are right, the tragedy was not Frankfurter's, but judicial restraint's. Frankfurter's error was not in pledging allegiance to an idea, but to the wrong idea. To use Wilkinsonian imagery, from the time of Thayer it was already plain to see that judicial restraint could not bear the cosmic burden laid on it in the face of the coming challenge of legal realism. Judicial restraint was a rearguard defensive action--an apologetic strategy--and its adaptation in the hands of each of its subsequent adherents (Frankfurter, Bickel, and so on) served to illustrate its weakness as a persuasive response to the problematics of twentieth century constitutional adjudication.
Many insights seem so obvious once you have them that you wonder whether they are insights at all. And some may be so obvious to others that putting them down on paper for oneself or others may be a waste of time. But it seems like many people share a similar confusion to one that Marc and I experienced when we began writing about Judge Posner's judicial pragmatism and Judge Wilkinson's judicial restraint. So we decided to use Part III of our investigation of their writings about (and while engaged in) constitutional adjudication to develop what seemed like an insight to us. This is the claim that judicial pragmatism and judicial restraint are not best understood as constitutional theories to replace something like originalism or Dworkinian moralism, but are instead better understood as dispositions toward constitutional adjudication.
We think it's helpful to make this claim explicitly because both Posner and Wilkinson have pitched their approaches as substitutes for other constitutional theories on offer, and academic critics have responded in kind. But this leads to the judges talking past the scholars, and vice versa. Once one understands judicial pragmatism and judicial restraint as dispositional accounts of the judicial office and judicial excellence in constitutional adjudication, one can offer criticisms that focus directly on the adequacy and depth of their accounts of good judging. Such criticisms are not a replacement for criticisms grounded in constitutional theory; those remain important. But the kinds of criticisms that we make are of a different sort. We argue, for example, that Judge Posner misapprehends Chief Justice Marshall's greatness as a judge when he adopts Holmes's understanding of Marshall as a "loose constructionist." And we contend that Judge Wilkinson is mistaken when he describes the quasi-Thayerian judicial restraint he advocates as representing "mundane and humdrum truths" or a distillation of the values of traditional adjudication. In fact, we contend that Thayerian judicial restraint is the first "cosmic constitutional theory" of the kind that Wilkinson criticizes. Although we do not put it quite this way in the paper (which does not mention Walker Percy), Thayerian restraint was a response to judges having become "Lost in the Cosmos."
Following on my earlier messages to the ReligionLaw list about the nature and pain of discrimination and the necessarily limited role of law in a free society, I attempted in this final message (which I set out below for Mirror of Justice) to sketch out some points of general agreement and narrow in on the remaining points of disagreement.
While I wouldn’t suggest that consensus has been reached on all points [among posters to the ReligionLaw list], I thought I heard increasing agreement on some basic points:
First, when the law declares that basic provision of goods and services may not be denied on the basis of certain classifications, the general application of such a law meets with general approval among members of the list. Thus, to use a couple of generic examples offered now by more than one member of the list, the grocer should not discriminate on race, gender, religion, or sexual orientation in selling groceries and the baker should not bar anyone at the door based on such identity from entering to buy baked goods. To permit the grocer or baker to pick and choose who to serve based on essential identity would be discrimination at its most invidious, the harm experienced by the person who was the subject of such discrimination would be at its most egregious, and the claim of an intrusion into liberty interests at its lowest ebb.
Second, and by contrast, people appear to agree that when a person suffers a hostile reaction to advocacy, even on the most discriminatory of bases, or when a person restricts the goods and services that will be offered to anyone on the basis of that person's personal identity, then law should not intervene. Discrimination in direction or in effect by itself cannot be the basis for unleashing the coercive power of law. Thus, as previously discussed, a pair of Christian evangelists who are the subject of discriminatory taunts on the street should receive no legal redress. And the Jewish baker who closes the shop early on Fridays because the Sabbath is beginning should not be forced to do otherwise.
Into this second category where the law should not intrude, then, presumably would fall such additional examples as the operator of a Jewish deli or a Muslim halal grocery who chooses not to stock pork chops or bacon for religious reasons; the owner of a gay and lesbian bookstore who chooses not to place books about religious “reparative” ministries on bookshelves because he disagrees with that message; or the obstetrician who refuses to perform abortions on philosophical or religious grounds.
Now, and here I return to the point where consensus has not been reached, I would submit that some of the same or similar characteristics or principles that define this second category of free choice also encompass the case that has been highlighted of the wedding photographer who declines to photograph a ceremony with which she disagrees. Similarly, an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician. A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse. A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients. A couples therapist may focus on gay couples, while not choosing not to work with straight couples.
Now each of these examples could be described as involving “discrimination.” But we have also used another term to describe these choices: Freedom.
What I would argue distinguishes these business choices from the general prohibition on discrimination in goods and services is that the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse. In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical. Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals. The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.
To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles. That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase. Here at least, we should say that the law may proceed no further.
Hunger, fear, arbitrary jailing, torture, and persecution are the daily plight of millions. 