During the two years I spent clerking for Justice John Paul
Stevens—years I still consider the most memorable of my adult life—I came to
know him not only as a brilliant legal mind but also as a human being. The
majesty of the Supreme Court affects different Justices differently; weighted by
their power and responsibility, some become remote, austere, and unapproachable.
That was never Justice Stevens’s way. In all his dealings, he remained the
amiable and unassuming person he had been while growing up in the Midwest, and
he took a personal interest not only in the clerks who worked for him but in
those assigned to the other Justices as well. Any of us who had questions about
the law or Supreme Court protocol always knew we could go to
him.
One instance of Justice Stevens’s kindness and consideration stands out with
special vividness in my mind. It was at the very beginning of my clerkship, when
I and all the other clerks (some twenty-six in number, as I recall) received an
invitation to a gala event in the White House Rose Garden celebrating the
issuance of a new postage stamp in honor of John Marshall, the great Chief
Justice and advocate of federalism. The President, Jimmy Carter, was to give a
speech, along with members of Congress, the head of the Postal Service, and the
Chief Justice (who at that time was Warren Burger). Asking around among my
fellow-clerks, I found that we all shared a similar confusion. What were we
expected to do at this ceremony? How were we to conduct ourselves? In a
condition approaching terminal stagefright, we sought out Justice Stevens and
put our questions to him. He reassured us with a friendly smile that made light
of our concerns while avoiding any trace of condescension. “Don’t worry,
fellows. Leave it to me,” he said. “With the other Justices, I will be standing
right in front of you. Just keep your eyes on me, and do exactly what I do.”
This allayed our fears, and we promised to follow his instructions to the
letter.
The ceremony took place on a mild afternoon in early June. The Marine Corps
band was playing, the sun was smiling down, the Rose Garden roses bloomed
splendidly. All nine Supreme Court Justices, imposing in their long black robes,
stood in a line to the right of the speaker’s platform. We clerks had been
placed in two lines just behind and to the right of them. All of us, needless to
say, had our eyes glued to Justice Stevens, and observed his every move as the
program began. Like him, we assumed an air of polite attention, our hands
crossed sedately in front of us. But, for all our watchfulness, none of us saw
the small bee that landed on Justice Stevens’s collar and slipped quickly down
the back of his robe.
If we missed the bee’s arrival, all of us soon witnessed its consequences.
After the invocation, President Carter mounted the podium and launched into a
speech about the legacy of Chief Justice Marshall. A few minutes passed before
Justice Stevens became aware of the bee under his shirt, just at the base of his
neck. In an attempt to dislodge the insect, the Justice raised his right
shoulder, then his left. Faithful to our instructions, all twenty-six of us
clerks immediately did the same. The tactic had no effect, however, so Justice
Stevens repeated it, now moving alternating shoulders up and down more rapidly
and jiggling his arms. None of us clerks quite understood how these gestures
could be necessary for the ceremony, but, trusting implicitly in our kind
mentor, we moved our shoulders and jiggled our arms just as he had done.
Portugal's conservative president said he is reluctantly
ratifying a law allowing gay marriage, making the predominantly Roman Catholic
country the sixth in Europe to let same-sex couples wed.
President Anibal Cavaco Silva said he would not veto the bill
because majority liberal politicians would only overturn his decision.
The country must focus instead on battling a crippling
economic crisis that has increased unemployment and deepened poverty, he said.
"Given that fact, I feel I should not contribute to a
pointless extension of this debate, which would only serve to deepen the
divisions between the Portuguese and divert the attention of politicians away
from the grave problems affecting us," Mr Cavaco Silva said.
He said he was setting aside his "personal convictions,"
though he did not elaborate and did not take reporters' questions.
The country's parliament passed the Socialist
government-backed bill in January, with the support of all of Portugal's
left-of-centre parties, who together have a majority. Right-of-centre parties
opposed the measure and demanded a national referendum.
Elsewhere in Europe, gay marriage is permitted in Belgium,
the Netherlands, Spain, Sweden and Norway.
As well, five US states and Washington, DC, legalised
same-sex marriage, as have Canada and South Africa.
Mr Cavaco Silva's announcement came three days after Pope
Benedict XVI left Portugal. During his four-day visit, which attracted hundreds
of thousands of people, the pontiff said same-sex marriage and abortion were
some of the most "insidious and dangerous" threats facing the world.
Socialist Party spokesman Vitalino Canas welcomed the
president's decision.
"This is a memorable moment," he said. "This is a great step
forward for us politically and as a society."
Antonio Serzedelo, the president of lobbying group Opus Gay, congratulated the head of state for placing
"ethical responsibility above personal opinions".
Portugal is nearly 90% Catholic. However, only around two
million of its 10.6 million people describe themselves as practising Catholics
and Portugal has drifted away from the church's teachings.
The current Socialist government has defied the church
before. It passed a law in 2007 allowing abortions. The following year, it
introduced a law allowing divorce even if one of the spouses objected. It
has argued that the legislation is part of Portugal's "modernisation".
The new law removes the previous legal stipulation that
marriage is between two people of different sexes.
Portugal's Constitutional Court validated the bill's legality
last month.
In a recent post at Mirror of Justice on May 16, Robby George
was able to identify only two justices (White and Black) appointed by
Democratic Presidents in modern times that he could approve – those who he said
applied what he calls “constitutionalist” premises. Judges are
constitutionalist in Robby’s sense only to the extent to which they confine
themselves to the “text of the Constitution, the logical presuppositions and
implications of its provisions, its structure, and its publicly understood
historical (or ‘original’) meaning.”
In response to an earlier post of his, I asserted that
Robby’s limitation on constitutional sources has been rejected in practice by
the overwhelming majority of Supreme Court justices in modern times. I
suggested that constitutionalism is Robby’s theory, not the Court’s. In other
words, if a sociologist examined what justices do, he or she would recognize
that the practice of constitutional interpretation is not confined to Robby’s
sources. In fact, justices look to language, history, structure, precedent,
policy, and occasionally the Court’s power (or limits thereof) as constitutional
sources in arriving at constitutional interpretations.
There are many who say that justices who use policy
arguments (based on morality or practicality or efficiency) are not doing
interpretation, but are engaged in legislative reasoning. This is a normative
institutional claim, not a descriptive claim of what justices actually do.
Moreover, the community of discourse in which constitutional interpretation is
situated is not a open-ended as legislative reason. Justices cannot do whatever
they want simply because policy is a constitutional source. For example, the
Constitution does not guarantee adequate food, clothing, education, housing,
and health care to all. As Henry Monaghan once said, we do not have a “perfect
Constitution.” In my view, the Constitution is an unjust document because it
fails to protect the poor; I do not think it would be appropriate to use
constitutional interpretation to change that; the policy arguments one can use
are limited by the history and tradition in which our Constitution is embedded.
Robby points to Ronald Dworkin’s article in the New York
Review of Books: A Moral Reading of the Constitution. Dworkin say that justices
do not admit they are making moral arguments though they should. I think this
is incorrect even as to moral arguments (they do explicitly make moral arguments), but it is blatantly false if it is
intended to suggest that justices do not routinely make policy arguments.
Policy arguments permeate first amendment discourse for example. In the recent
Stevens case the Court made an attempt to explain the exceptions to first
amendment protection by reference to history. But the fact is that the Court
protects far more speech than was protected at the time of the founding (think
of defamation and advocacy of illegal action) and the greater protection has
been developed by policy arguments. The use of standards of review in equal
protection simply states weights for policy arguments. The same is true in the
commercial speech area and the time, place, and manner area. Policy analysis is
a part of constitutional interpretation; it is a part of constitutional law.
The term “constitutionalist” understood in a descriptive sense would include
policy. Robby's constitutionalist in fact is an anti-constitutionalist.
We're in the midst of a big conference at Princeton (on natural law, natural rights, and the American republic) so I haven't had a chance to look at the opinions in today's Supreme Court decisions. I can't offer an opinion about whether the justices in the majority or those in dissent in the respective cases have the superior arguments. The writer Michael P. quotes on the subject, Michael Winters, seems not to have read the opinions either, but he is confident that the majority in both cases is right. His confidence is not disturbed, by the way, by his professed incompetence to judge the legal arguments. I guess they don't matter to him. Evidently, he seems to think that the Supreme Court has plenary authority to invalidate laws the justices regard as unjust and uphold laws they deem to be just. It's a common mistake about the role of courts and the scope and limits of their authority under the Constitution, but a mistake nonetheless.
Speaking of confidence, in a different post Michael refers to some MOJ posters who are metaphysically and morally more confident than he is. I'm trying to figure out who they are. Perhaps they would be kind enough to identify themselves. I certainly know MOJers whose views on metaphysical questions differ from Michael's. And I know MOJers whose views on moral issues are more conservative than Michael's (sometimes as a result of differences on metaphysical questions). But I can't figure out who among us is more confident in his or her views. Of course Michael's a pretty confident guy, so the standard is fairly high. I myself am pretty confident about some things, so perhaps I'm nipping at his heals. Of course, it's common for people to suppose that those who disagree with them are excessively confident in their views. (Sometimes the term "confident" is used to suggest that one's interlocutors are less open-minded or willing to consider counterarguments than oneself.) So perhaps, since Michael and I often disagree, I'm perceiving him as being more confident than he actually is. By the same token, perhaps Michael is overestimating the degree of confidence of those unnamed MOJers whom he regards as more confident than he is on metaphysical and moral questions.
About married sex: I met Sarah when she was thirty-five, but just a few weeks shy of thirty-six. Our first child, Daniel, was born a couple of weeks after Sarah turned thirty-seven--and I, God forbid!, was forty-three. Our second/final child, another son, Gabriel, was born twenty-five months later, a month and a half after Sarah turned thirty-nine--and I, again God forbid!, was forty-five. Unlike some metaphysically- and morally-confident MOJ posters, who am I to judge? But for Sarah and me--my advanced years to the contrary notwithstanding--married sex was certainly the way to go!
... who, unlike yours truly, actually knows something about constitutional law and theory, to tell us whether, in his/her judgment, SCOTUS decided rightly today in the Eighth Amendment case about juveniles and life-without-the-possibility-of-parole sentences. Rick and Robby, would you have been with the five ... or with the four? While we wait--in my case at least, with bated breath--here's Rick's friend, Michael Sean Winters, at NCR Today:
The
Supreme Court today issued two rulings that might seem, at first blush,
contradictory. In the first, the Court ruled that it is
unconstitutional to sentence a juvenile to life without the possibility
of parole except in cases of homicide. In the second, the Court held
that the federal government can refuse to release a sex offender, even
though his or her sentence is completed, if there is a likelihood that
the offender remains a threat to society. The latter outcome seems to be
more punitive and the former less so.
I am no constitutional scholar, and so I will pass on any analysis of
the legal arguments. But, insofar as law must embody justice, we can
all conclude that the Court got it right. It is cruel to conclude that a
juvenile is beyond redemption. It is not so unusual: I can hear my
mother counseling me to stay away from a certain classmate: “He is a bad
egg, and he will never change. I knew his father!” But people do
change, and none more than youth. The Court put the possibility of mercy
and redemption above the demands of simple, adult justice. That is the
right call.
The second ruling is just as sound. Under our system of laws, it is
undoubtedly the case that the punishment must fit the crime and that,
once a punishment has been fulfilled, a convict should be released. But,
if we have learned anything in the past decade, it is that sexual
predators, for a variety of complex psychological reasons, are almost
never “cured” of their criminal inclinations, in part because predators
rarely see their inclinations as criminal. They suffer from a kind of
aborted psycho-sexual development that leads them to live in complete
denial. In their minds, when their minds turn to sex, they are always 12
or 13 so they can’t see what they are doing as the wrong that it is.
The law should be altered to allow for a state’s interest in protecting
its children from these people who are so incapable of helping
themselves. This is no denial of mercy. It is no favor to a pedophile to
let him commit more crimes.
I was also heartened to see that Obama’s only nominee on the Court,
Justice Sonia Sotomayor, was in the majority in both cases.
Via Ross
Douthat, I see that Jody Bottum has a
truly courageous piece in the new issue of First Things
calling for Cardinal Sodano (whose see-no-evil antics were blogged about
earlier here
and here)
to step down from his position as dean of the College of Cardinals over
his role in covering up cases of sexual abuse within the Church, in
particular the truly despicable behaviors of Legion of Christ founder
Marciel Maciel. What’s especially remarkable about Bottum’s piece is its
forthright acknowledgment not just of Maciel’s sins and the ways that
institutional structures in the Legion and the Vatican helped to abet
and obscure them, but also of Bottum’s own predecessor’s unfortunate
acquiescence in that same closing of the ranks:
The child-abuse cases were a corruption in the
Church. What Fr. Maciel attempted is a corruption of the
Church. He fooled many people, including this magazine’s creator,
Richard John Neuhaus, who once defended Maciel in a 2002 column, before
agreeing later that Cardinal Ratzinger (investigating Maciel at the
Congregation for the Doctrine of the Faith) and John Paul “know more
than I know with respect to evidence.”
The irony is that Fr. Neuhaus didn’t undertake that defense at the
behest of Maciel, whom he never knew well. He did so because people he
did know well, young American priests of the Legion, begged him to do
so, telling him that their founder was suffering an attack they were
certain was false and unfair. The first victims are the men,
women, and children that Maciel, in his polymorphous perversity, used
sexually, but the second set of victims are the good, strong, dynamic
priests who had little direct contact with the man and are nonetheless
tarred by his actions.
[...]
First Things has never
received money from the Legion (and the closest I personally have been
to their finances was a single review, of an Orhan Pamuk novel, I
wrote for the National Catholic Register back in 1997). But
then one thinks of the likes of Thomas Williams, Tom Hoopes, Thomas
Berg, and all the other friends and acquaintances who had associations
with the Legion of Christ and Regnum Christi. For that matter, many
American Catholic commentators have lectured over the years at the
movement’s events. The money they received was never significant, but
it all helped contribute to an atmosphere in which the Legion could
close ranks after the first public accusations against Maciel.
There are things to disagree with in Bottum’s column – there’s
something unduly complacent, I think, in his confident proclamation that
“the most evil, disgusting part” of the sexual abuse crisis in the
Catholic Church is over; and is it really true that the Church “did not
materially advance” the crisis of child sexual abuse worldwide? – but on
the whole it’s a helpful change of pace from the Us-vs.-Them mentality
that far too often characterizes the pages, both real and virtual, of First
Things. It’s words like this that are most likely to build the
culture of accountability, and thus help drive the spiritual renewal,
that our broken and corrupted Church so sorely needs.
[If you're interested in the comments this post has generated--which are very, very interesting--click here.]
I have an essay in the new Commonweal about the Christian Legal Society v. Hastings Law School case. It's only available to subscribers, but here's an excerpt:
[W]hen is discrimination “wrong?”Is there a difference between excluding someone because she is gay or black or female and excluding them because she refuses to affirm the immorality of homosexual conduct, the supremacy of whites, or the wisdom of patriarchy?If there is not a meaningful difference in terms of the harm to the person excluded, is there a meaningful difference in terms of the harm to the group’s shared identity posed by prohibiting such exclusions?More broadly, when does discrimination’s “wrongness” justify state intervention?Most Americans agree that the state should act to limit discrimination in the provision of goods that are essential to self-sufficiency – e.g., employment, housing, and education – and that the state should leave purely private groups alone– e.g., no one is clamoring for laws that would require the neighborhood bridge club to admit racial minorities.But many discriminatory groups are not depriving anyone of essential goods, nor are they purely private.A student group enjoys the resources of a state university.A religious charity seeks access to state funding in order to compete with the other charities receiving such funding.Where exactly should the line be drawn, and what values or harms help us decide that question?
We need to talk about why diversity is valuable, equality is essential, and discrimination is corrosive to the social fabric.Even more importantly, we need to identify the conditions under which these propositions are true.Given the vitriol that marks our political discourse these days, it is tempting to sidestep these conversations, but we cannot pretend that concepts – even our most cherished concepts – possess talismanic properties, as though they magically justify any project to which they are attached.
Here's a rather bizarre sort of counter-argument to the prognostication that Michael Perry posted about IVF replacing sex. The latest Yale Alumni magazine included an interview with Carey Goldberg, one of three authors of a book called "Three Wishes: A True Story of Good Friends, Crushing Heartbreak, and Astonishing Luck on Our Way to Love and Motherhood." It's described as a 'laugh-cry-and-cheer book." This is how Goldberg describes the story:
The book begins when I turned 39 and was still single and decided to
become a
single mother. So I bought eight vials of donor sperm. But just as those
vials
arrived in my clinic’s freezer, I met the man who would become my
husband and
the father of my children. So I passed the sperm on to my friend Beth,
who had
just come out of a horrible divorce. But as soon as Beth got the sperm,
she,
too, met the man who would become her husband and the father of her
child. So
she passed the sperm on to our friend Pam, and the same thing happened!
She met
a man and had a baby. So it’s kind of a sisterhood of the traveling
sperm.
The interview ends with this heart-warming colloquy between Goldberg and her daughter:
My daughter Liliana is now eight. Recently I was playing the game of
Life with
her, and she reached the point on the board where your little car has to
stop
and you get married and put a spouse in. And my daughter said, “When I
grow up
I don’t think I’ll get married. I’ll just get some sperm.” And I found
myself
saying, “Well, that’s fine, but being married is really very nice too.”
So, I guess the "laugh and cheer" part of the book includes an affirmation of marriage and old-fashioned sex as still being the best way for this generation to have kids, even if either way would be OK for the next generation. What about the "cry" part of the book? May this:
But the book makes clear that having a baby this late is no picnic.
I had one miscarriage. Both of my co-authors terminated pregnancies
because
they had chromosomal disorders.
I suppose I shouldn't have taken Andrew Sullivan at his word when he wrote that he was going to stop demanding that Elena Kagan reveal whether she is homosexual. He's out this morning with an article in the Times Online entitled "Answer the Lesbian Question, Ms. Legal Eagle."
