The short reading for morning prayer today was Ephesians 4:29-32:
Guard against foul talk; let your words be for the improvement of others, as occasion offers, and do good to your listeners, otherwise you will only be grieving the Holy Spirit of God who has marked you with his seal for you to be set free when the day comes. Never have grudges against others, or lose your temper, or raise your voice to anybody, or call each other names, or allow any sort of spitefulness. Be friends with one another, and kind, forgiving each other as readily as God forgave you in Christ.
Reflecting on this reading made me go back and delete a reply I had sent earlier that morning on Twitter. And this was all after I had apologized for misunderstanding another person's posts about the same topic. So perhaps I'll lay off Twitter when it comes to responding to people criticizing Justice Barrett as having violated her faith by voting to deny relief in a federal execution. But some response remains warranted. So here it is.
Let's begin with how serious an accusation it is to assert that someone has violated her faith and well-formed conscience. The gravity of such a charge is not a decisive reason against leveling it. But it is reason to make sure one knows what one is talking about in doing so.
In this case, that is easy enough because Justice Barrett has done more than any other Justice to explain how she understands the relationship between Catholic teaching on the death penalty and what role Catholic judges may play in a legal system that imposes and carries out such sentences. That explanation appears in Catholic Judges in Capital Cases, 81 Marquette Law Review 303 (1998), co-authored with John Garvey.
I know from personal experience how helpful this article can be for thinking through the challenging issues that confront anyone who participates in some way in a legal system that carries out the death penalty even while believing the punishment immoral in almost all circumstances in which it is imposed in society today. I'm one of those people. And there are a lot of us.
I had to think about it when handed my very first case as a judicial clerk in my first job out of law school. It was a capital case with something like 17 issues, resulting in a bench memo of over 70 pages. (I was new and very much in need of an editor.) Because many recent law graduates serve as law clerks, and many jurisdictions impose the death penalty, every year there are law clerks in the same situation I found myself in. And when I can, I try to point them to this ACB/Garvey article. This is not because it answers every question one might have about every kind of cooperation with evil one might encounter. But it is careful, thorough, and attentive to orthodoxy.
Some of Justice Barrett's casual critics have clearly not done the reading. Which is a shame because one can learn a lot by engaging the Barrett/Garvey analysis on its own terms. In some places, the authors' conclusions are appropriately tentative and tempered by an awareness that not all circumstances can be accounted for properly simply by categorizing, for example, guilt phase vs. penalty phase, trial vs. appeal vs. collateral review. Roughly speaking, though, Barrett & Garvey conclude that Catholic judges "may sit on the guilt phase of capital cases--provided they withdraw before sentencing. They may handle appeals challenging convictions and (perhaps) even sentences. They may also engage in collateral review of cases where the defendant was sentenced to death." 81 Marq. L. Rev. at 345.
I won't repeat their analysis here, but will add only that by the time that any capital case gets to the Supreme Court, it has either already been through multiple layers of review, or there is some procedural bar if the claim is relatively new. The extent of material cooperation in such circumstances is thus typically lower than even the typical appellate or collateral review.
There is a danger of scandal, though. And this is another reason why Catholics who really ought to know better should be sure they understand what they're talking about before they risk contributing to scandal with casual condemnations of alleged infidelity to one's well-formed conscience.
To my faithful friends and family of who voted for the losing candidate:
“[Biden’s] victory caused people to weep in joyful relief as they became aware of the heaviness that had afflicted their hearts, after they’d suddenly been relieved of it.”
The words above express what so very many of us felt when the presidential election was finally called days afterward. I myself was startled to find tears forming in my eyes when I knew for certain that the Trump presidency was now in its last days. I truly felt like a heavy weight had been lifted off my chest.
I do understand that those who voted for President Trump had a very different emotional reaction after his defeat: grief, anger, fear, denial. I do wish to extend sympathy toward Trump supporters with their deeply felt disappointment. I have always sought to understand in a sympathetic way why so many of my brothers and sisters in Christ reached a decision to support this man, who I saw as so undeserving of their faith (and I speak more of what I think I’ve learned in my words to Biden supporters below).
But in the interests of understanding each other in the community of Christian faith, I do ask those who voted for Trump to take a moment and try to understand (and perhaps even find empathy for) why so many of us felt intense relief that we would not be experiencing another four years of this presidency. Can you appreciate the wounds that so many Americans felt from the hostile words, blizzard of insults, and unceasingly childish behavior of the man in the White House?
A public lecture to mark the 850th anniversary of the murder of Saint Thomas of Canterbury.
The Ecclesiastical Law Society, in association with Villanova University, Notre Dame Law School, and the Dean and Chapter of Canterbury Cathedral, extend a warm invitation to this special lecture.
I want to call a little attention to this new monograph by Professor Lorenzo Castellani, L'ingranaggio del Potere ("The Gear of Power"). The book is just published and it is in Italian. But it intervenes insightfully in debates about political power that ought to be of great interest to American and British scholars of administrative law, though its primary focus is on "Eurocracy."
The book is a sweeping study (in just a few pages)--a history of ideas or, as he puts it in an early chapter, an analysis of the "real thing"--of how "competence" and "technical expertise" has come to dominate our political world. It helpfully contrasts the realms of "politics" and "policy." While we often think of these as united, or even one and the same, Castellani distinguishes them, locating the latter squarely as the province of the experts and not really about democratic politics at all. But policy has "hidden itself" well as derived from politics in modern democratic societies. The thesis: "In advanced modern societies, the principle of aristocracy has a much greater weight in the organization of those societies than we are commonly led to believe or admit. In contemporary democracies, this aristocratic element is based on competence--that is, on the specialized knowledge of individuals supplied and certified by the structure itself through educational institutions, programs of study, titles, exams, and competitions. This aristocratic-hierarchical principle exists together with the democratic-representative principle from which, in recent decades, it has progressively eroded significant spaces." (25)
If this sounds in some ways reminiscent of James Burnham's early work in The Managerial Revolution, it is. Indeed, I think Castellani has taken on a good deal of Burnham. But the applications he sees in Burnham's work (and the work of others including Daniel Bell) for the "techno-democracies" that rule us now, and that are nevertheless the subject of such controversy, are fresh and insightful.
American publishers take note! This book deserves a good English translation. It has a lot to say to Anglo-American concerns today.
This morning's oral arguments in California v. Texas will put on display the Justices' conceptions of their individual judicial role, the Court's role, and the role of the federal courts more generally. One feature to look for is the way that the Justices think about how "judicial review" operates.
The quasi-legislative conception of judicial review that now seems well ensconced was something of a late arrival, emerging in the late nineteenth century. An earlier understanding focused more on refusing to give effect judicially to unconstitutional law. On this traditional understanding, the judiciary did not do anything to an unconstitutional law; it performed no operation, no striking down.
The whole framing of severability, however, presupposes the more modern understanding of judicial power vis-a-vis unconstitutional laws. Within this quasi-legislative conception, an excision-based understanding of judicial review asks whether the Court can surgically remove an offending aspect of the law without ruining the rest of the law.
While severability is of deep interest, my ears will perk up more if there is discussion of justiciability. There is an unfortunate tendency in recent decades to flatten out Article III justiciability to focus on standing to the exclusion of other ways of thinking about what makes a "case." The amicus brief that I teamed up to file with Michael McConnell, Sam Bray, and Raffi Melkonian provides another way of getting at the absence of a true case here. Its basis seems like a very narrow doctrine about a case interpreting the Declaratory Judgment Act. But that is only on the surface. Foundationally, the Skelly Oil doctrine operates in a situation like this to avoid the provision of an advisory opinion. Here's to hoping this line of analysis receives some attention.
The Supreme Court of the United States heard arguments Wednesday (Nov. 4) in Fulton v. City of Philadelphia, a case that “presents timely and important questions about the Court’s First Amendment doctrines and the balance between religious freedom and antidiscrimination laws,” according to Notre Dame Law School professors Stephanie Barclay and Richard Garnett.
... In a panel opinion joined by David Souter (ret.), sitting by designation. Maine provides that rural students who can't access a public school can have tuition paid at a private school, but not if it's "sectarian." The CA1 permitted this, despite Trinity Lutheran Church and Espinoza, on the ground that the definition of "sectarian" means that a school (and the parents' choice of it) is disqualified from eligibility not simply because the school is religiously affiliated (religious "status"), but because the funds will be used for activity that includes religious teaching (religious "use").
That issue was formally reserved by Trinity Lutheran and Espinoza: the Court wrote the opinions in a way that allowed a lower court to do this if so inclined. But the status/use distinction won't, and shouldn't, hold up ultimately. For one thing, "use" for religious teaching is also religious exercise (as Justice Gorsuch has emphasized throughout). For another, denying the entire tuition benefit--which supports education of full secular value--because there's religious teaching mixed in ends up denying it based on religious character/status. The distinction collapses, as Gorsuch has also said. Doug Laycock and I have laid out these arguments fully in an Espinoza amicus brief and a new article just published in the Journal of Law and Religion.
It seems very likely that a majority of the Court would view the CA1 ruling as appropriate for reversal. The question is whether they want to revisit the issue so soon after Espinoza.
The CA1 opinion also has a striking argument that the state is paying for the equivalent of a public education and the essence of a public education includes there being no significant religious element--therefore only secular private schools should be eligible. Although the state places some baseline accreditation-type regulations on the qualifying private schools, it doesn't appear to place major regulations that ensure they're truly like the public schools. They just can't teach religion.
There is an argument out there, with very broad consequences, that even funding public schools only--and no private schools--discriminates against religion because part of the definition of a public school is that it can't have religion in its teaching. It's almost like the CA1 panel wants to drive the Court toward that argument.
Although much has been made of Justice Barrett's originalism, it is more likely that her judicial departmentalism will matter much more. More specifically, I believe that Justice Barrett's Judicial departmentalism will be more important than her originalism in each case in which it matters, and that her judicial departmentalism will be operative in more cases than originalism will be.
Judicial departmentalism is best understood by way of contrast with judicial supremacy. Conventionally, judicial supremacy is the position that the Constitution means for everybody what the Supreme Court says that it means in resolving a case or controversy. Judicial departmentalism, by contrast, is the position that the Constitution means in the judicial department what the Supreme Court says that it means in resolving a case or controversy. Instead of treating judicial departmentalism as an alternative to judicial supremacy, then, we could also treat it as a form of bounded judicial supremacy. The boundaries around Supreme Court authoritativeness are the boundaries around the judiciary.
There is an affinity between originalism and judicial departmentalism insofar as originalism provides an account of what the Constitution means that does not necessarily depend on looking to what the Supreme Court has said. Originalism can therefore provide a reference point for determining whether existing judicial doctrine underenforces or overenforces the Constitution in a variety of ways. As I have previously argued, "[c]onstitutional originalism provides a standard outside of the Supreme Court's doctrine but inside the law that enables one to see how legislation may appear to overenforce when measured against judicial doctrine, but actually does not, because the judicial doctrine underenforces the Fourteenth Amendment as assessed from an originalist perspective."
Justice Barrett's prior academic writings do not explicitly adopt judicial departmentalism. But the concept is relatively new and still somewhat obscure. I first presented the idea publicly at a symposium at William & Mary Law School that I then left early to attend Justice Scalia's funeral. But Justice Barrett's prior academic writings reveal an openness to judicial departmentalism. And Barrett joins the Court after having studied the history and limits of the federal judicial power in greater detail than any other current Justice had studied it prior to joining the Court.
Barrett's scholarship recognizes limits on the authoritativeness of the Supreme Court's say-so in a variety of ways. For example, her scholarship supports skepticism that the Supreme Court possesses inherent supervisory rulemaking authority over other federal courts. And even more importantly, Barrett has explicitly distinguished originalism as a theory of law from originalism as a theory of adjudication. Because of this important and well-founded distinction, judicial implementations of originalism must always remain open to influence by some normative theory of adjudication in addition to a descriptive or prescriptive theory of law. And judicial departmentalism is a component of both a theory of law and a theory of adjudication. There is therefore very good reason to think that Justice Barrett will understand her role on the Supreme Court in self-consciously judicial departmentalist terms. This would provide a welcome contrast with the unselfconscious and often inconsistent judicial supremacy one more commonly encounters.
