Wednesday, October 21, 2020
In this staff editorial, the National Catholic Reporter team advances the strange notion that Judge Barrett's nomination should be rejected because of her alleged "moral relativism." (The charge is strange, in part, because it circulates with another set of wrongheaded attacks on Barrett, i.e., those that claim she will aggressively impose "her morality" on others and on legal questions. Chesterton would enjoy this spectacle, I guess.)
To paraphrase the wise Inigo Montoya, that word does not mean what the NCR writers think it means.
Contrary to the editorial writers' charge, there is nothing "morally relativistic" about, e.g., declining to answer unlettered senators' bad-faith questions having to do with their various hobby-horses (Dark Money! The Shadow Docket!) or about political figures, policy questions, and matters that are, or are very likely to be, the subject of litigation. All nominees decline to answer such questions and -- although there is room for disagreement at the margins -- this declining is generally required by judicial-ethics canons. Barrett never suggested that the questions she was declining to answer do not have answers, or that the answers to them do not matter. She (quite appropriately, even if it interfered with the senators' made-for-TV antics) simply noted that it's not appropriate for a judicial nominee to answer them.
In addition, the NCR editorial echoes and proposes a common mistake, namely, that it is somehow "relativistic" for a federal judge to insist that federal judges are not authorized or selected to supply the law's moral content or to resolve moral disputes. (Justice Scalia was also often on the receiving end of this kind of thing.) A judge with the judicial philosophy that Judge Barrett espouses does not think that "morality is relative", or that it doesn't matter if our laws reflect sound morality or not, or that it is not important that the correct answers be supplied to moral questions. Such a judge simply thinks, again, that politically accountable actors (this side of Heaven) are those best and most legitimately situated to make the trade-offs, compromises, and close-calls that human law-making necessarily involves and that the job of a judge is to try to figure out which calls the politically accountable actors actually made.
Now, the NCR piece is unsigned, but it is consonant, in themes and in tone, with some claims that NCR's Michael Sean Winters has been advancing for years -- about "originalism", constitutional interpretation, etc. -- and that are also, in my view, mistaken. Among other things, Winters seems to think that "originalists" adopt the interpretive methodology they do because of some imagined moral authority or superior character possessed by the "Founders" or by the Founding generation, many of whom, Winters will sometimes remind us, were anti-Catholic. Yes, many were. But, of course, the case for "originalism" has nothing to do with these actors' character and insight. It is much more prosaic: In a democracy, the judicially enforceable content of positive law is fixed by the understanding of those who enacted the law. To depart from that understanding is to re-make law and, when federal judges do that, they are acting outside of what We the People authorized them to do authorization.
Back to the NCR anti-Barrett editorial: It states (among other things), "[i]n her commitment to originalism and textualism, she claims not to be interpreting the law or the Constitution at all." This is quite odd. The entire point of interpretive methods (other than the "do what you think is right for those litigants you find most sympathetic" method that the editorial writers appear to endorse) is that they are methods of interpretation. The aim of these methods is to identify the semantic and judicially enforceable content of positive law.
Judge Barrett should, and I hope will, be confirmed. I know her well, and admire her a great deal. It is disappointing that, regardless of its opposition to the nominating president or its frustration with the state of our judicial-nominations process, a Catholic periodical would push such implausible lines of attack.
UPDATE: A longtime reader and MOJ-friend writes in, with this: "It is ironic that the National Catholic Reporter would attack the notion that whatever else a text does, it has a meaning within the context that it is written, a meaning that can be discerned by careful historical scholarship, a meaning that is particularly important to discern in a text that bears upon how we conduct our lives today. After all, the entire field of contemporary historical biblical studies is based upon that thesis."
Monday, October 19, 2020
Notre Dame Law School's Program on Church, State & Society is pleased to welcome Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit as a guest lecturer the week of October 26.
Judge Thapar will teach alongside Program Faculty Director and Paul J. Schierl/Fort Howard Corporation Professor of Law Richard Garnett in a Freedom of Religion seminar course offered to a select number of Notre Dame Law students. Thapar will also meet in small groups throughout the week with first-year law students affiliated with the Program on Church, State & Society.
https://law.nd.edu/news-events/news/judge-amul-thapar-to-guest-lecture-at-notre-dame-law-school/
Friday, October 16, 2020
In my professional life, I have not been reticent to express my opinions on matters of the law and legal reform, taking clear and I believe well-informed public positions on matter of public policy. In my personal life, I have not been quiet in expressing my political views, including judgments about candidates. (And in expressing political opinions here, I of course do so in my personal, academic, and professional capacity, not on behalf of my Mirror of Justice colleagues or speaking for the University of St. Thomas.). My colleagues, professional associates, family, and friends know where I stand on major issues:
- I believe in robust protection of religious liberty, including the right of individuals, religious schools, and churches, mosques, and synagogues to express religious views and exercise religious practices that may not be in vogue with the cultural elite.
- I believe that educational choice — including (especially including) religious schools — is one of the most powerful engines for progress, equal opportunity, and racial equity.
- I believe that the right to life of the unborn should be recognized as a compelling civil rights cause.
- I believe that people in urban areas, as well as suburban or rural, have a right to be safe from violence, whether safety is endangered by racist police subcultures and unnecessarily militaristic practices or by foolish calls to defund and abolish the police.
- I believe that law-abiding citizens have a constitutional right to own a gun for self-defense or sport and am a gun owner myself.
- I believe in freedom of speech and defend it against threats by self-righteous intolerant persons in the cultural elite of academia, media, and government or elsewhere in society.
- I believe that socialism is a dangerous ideology with a long history of destroying economic prosperity and undermining liberty throughout the world.
- And I believe that government and politicians are as often the problem as the solution, so that we often (not always, but often) are better advised to look for community-based partnerships for the common good.
I understand and respect that most people who share all or most of the beliefs that I have just articulated will find it difficult or impossible to support Joe Biden for president. They instead find themselves, even with grave misgivings, forced to the conclusion that President Trump is the lesser evil in this election. I love many people and know and appreciate others who, while acknowledging the grave flaws in this disordered man and saddened by the choice, will reluctantly cast a vote for Donald Trump. And I know others who conclude the only alternative is not to vote for president or to cast a protest vote for a write-in or third-party candidate.
But I submit these conclusions are badly mistaken at this moment in history. The greater good, the higher priority right now is to bring an end to this train-wreck presidency.
I do not think that religious liberty, free enterprise, educational opportunity, public safety, or the right to life of the unborn are at all safe in the insecure hands of this president. Indeed, I fear that the principles that I hold most dear are endangered in the long run (and not so long run) by being so closely associated with this toxic figure.
Continue
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Tuesday, October 13, 2020
In today's New York Times, Wajahat Ali wrote a column titled, If Amy Coney Barrett Were Muslim. Drawing parallels with Judge Barrett's Catholic background and experiences, Ali points to the scurrilous and bigoted comments made by many on the right about Muslims in public life. While I am disappointed that he compromised the strength of his argument by ending with a political attack on Judge Barrett's judicial philosophy (confirming leftist bona fides is apparently obligatory these days at the New York Times), Ali's column strikes me as a sadly fair description of hypocrisy and anti-Muslim antipathy among many Americans, including those who claim to care about protecting religious faith. Ali's column should be read by every faithful Catholic, both to be reminded of the importance of a robust understanding of religious liberty and to stand in solidarity with our Muslim brothers and sisters when they suffer bigoted attacks and ignorant attitudes.
Yesterday, I had the opportunity to discuss what I call "dignitarian" feminism on NPR's On Point with host Meghna Chakrabarti and Fatima Goss Graves of the National Women's Law Center. Here's the audio. I spoke about a similar topic with the Catholic Association's lovely Grazie Christie on their podcast, Conversations with Consequences. Grazie and I also gushed for a bit about the brilliance, generosity, and humility of Judge Barrett. (By the way, if you haven't listened to the episode with Adrian Vermeule and Patrick Deneen, I'd highly recommend it.)
And here's a very short piece I have up at CNN this AM on the first day of the hearings: "One cannot help but conclude by the actions on the part of the Democrats on Monday that the case against confirming Judge Barrett is a very poor one, indeed. Let's face it: Her qualifications are impeccable, her originalist philosophy now quite mainstream, and her dispassionate and self-possessed temperament the very best one could hope for in a judge."
Monday, October 12, 2020
I have an essay at First Things that lays out my understanding of what Judge Amy Coney Barrett has written about stare decisis and the fact of methodological disagreement in constitutional interpretation. The essay in part aims to correct this grossly misinformed and error-saturated piece published at Commonweal. But in much larger part, it tries simply to do justice to Judge Barrett's view in her scholarly work. A bit:
Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means.
For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.”
As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it.
Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.”
This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.
Thursday, October 8, 2020
Braver Angels, a diverse group of people of different backgrounds and political beliefs, strives to bring America together and help move us in a united way toward the common good.
"What We Will Do to Hold American Together" is a public letter speaking to unity in these divided times.
You can read -- and sign -- the letter here.
