Michael Dorf's post on originalism and Brown two weeks ago touched off an interesting series of observations and arguments by Larry Solum, Paul Horwitz, Asher Steinberg, Michael Ramsey, and Richard Re, among others. (See also follow-up posts by Dorf and Solum.)
Dorf's post was about the need for originalist theory (or any other constitutional theory) not just to accommodate Brown as decided but to explain why Brown was right. In Dorf's words:
[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.
Underneath this claim about the relationship between constitutional theory and constitutional doctrine is a claim about our constitutional culture: "A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper."
Now as it happens, there are some who are worried that our legal culture's conception of constitutional interpretation is corrupt, perhaps irredeemably so. And at least one of them is on the Supreme Court. Consider for a moment the penultimate paragraph of Justice Alito's dissent in Obergefell v. Hodges:
Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that some will take from today's decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.
Strong words. But don't let agreement or disagreement with Justice Alito's jurisprudence control your reception of this assessment.
Consider also a quotation from Erwin Chemerinsky's recent book, The Case Against the Supreme Court, that Ronald Collins highlights in his online interview of Chemerinsky: "For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society."
Just so.
To use a word like "sacrosanct" to describe a case like Brown is to feed the false conception of the Justices as "high priests of the law."
Any sober assessment of Brown's contribution to dismantling the deep injustice of racial segregation in public schools cannot begin from the premise that Brown is right. No Supreme Court decision stands on its own bottom.
And it is far from clear that everyone who agrees that Brown is right are agreeing about the same thing, anyway. If people disagree about what they are actually saying is right when they say that "Brown is right," then starting from that premise won't get us too far. At least that's one lesson one might take from the deep judicial disagreement over the meaning of Brown in Parents Involved.
I am not arguing (not here, anyway) that Brown was wrong. I am not even making a claim about what Brown held. I am arguing that it is wrong to approach Brown as "sacrosanct." No Supreme Court decision is. Each decision is a group product of an institution composed of human beings, with all the limitations and promise this recognition carries with it.
How might this perspective help?
For one thing, it can help us see potential flaws in Brown. To pick one whose implications have previously been picked apart by others, Chief Justice Warren's opinion for the Court was unanimous. And that is a problem if the Court itself was not unanimous in its legal judgment.
Projection of false unanimity is a sign of weakness, not strength. It deprives the public on the "losing" side of the knowledge that the best arguments for their view were considered and rejected on the legal merits. It deprives the majority of the opportunity to strengthen its legal case by responding to dissenting legal arguments. And it adds to the perception that Supreme Court decisions are the product of will, not judgment.
This is not to say that Justices should never acquiesce in opinions with which they do not fully agree. I haven't thought enough about such acquiescence to have a view, and it is common enough in Supreme Court history to avoid out-of-hand dismissal. But identifying potential problems with the projection of false unanimity enables one to better appreciate what is and is not involved in the premise "Brown is right."
Finally, let us not forget that there were two Supreme Court decisions in Brown. Dorf's posts were about Brown I. The remedial decision a year later in Brown II is far from "sacrosanct." Its use of "all deliberate speed," for example, has been widely criticized. (Interesting aside relevant to Catholic legal theory: The phrase "deliberate speed" apparently originated with Francis Thompson's poem, The Hound of Heaven. See Jim Chen, Poetic Justice, 28 Cardozo L. Rev. 581 (2006), and this earlier MOJ post.)
Even though the Supreme Court decided a Brown I and a Brown II, there was only one Brown. This is the unanimous Brown (in both I and II). And it is the ambiguous Brown.
There is no sacrosanct Brown.
Thursday, November 5, 2015
The St. Thomas More Society of Richmond hosted our annual Red Mass and dinner yesterday evening.
The homily closed with an invocation of Mary, Mirror of Justice. I would be surprised if our enterprise here at MOJ had anything causal to do with that. But I took the homily as a renewed call for all of us present to imitate Mary, not as our own sources of light, but as better reflections of God's grace illuminating the world.
Our keynote speaker at the dinner was Ryan Anderson, whom I had the pleasure of meeting for the first time. His speech, together with an earlier presentation at the University of Richmond Law School, enabled me to appreciate just how courageous and effective he is. No wonder so many people don't like him!
It's uncomfortable to be challenged. But as John Cavadini said in connection with Pope Francis's visit, we need to be challenged and made uncomfortable.
Introducing Ryan to a student audience earlier in the day reminded me of a quotation from Martin Luther King, Jr. that my college pro-life group put on our t-shirts when we restarted the group and became more visible: "There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right." We thought we were taking unpopular positions, but positions that needed to be taken. As it turns out, we probably overestimated the unpopularity of our views. But we were at least willing to put ourselves out there in order to tell the truth about the value of unborn human life.
Researching that quotation yesterday to make sure it was an authentic quotation from Martin Luther King, Jr. (unlike the one that circulated after the death of Osama Bin Laden), I came across another quotation attributed to King that seems particularly apt in the wake of Obergefell v. Hodges: "In the end, we will remember not the words of our enemies, but the silence of our friends."
I have not nailed down the source for this one and cannot vouch its authenticity. But the basic idea definitely fits with King's letter from a Birmingham jail, in which he criticized too many in the white church who were "more cautious than courageous" and "remained silent behind the anesthetizing security of stained glass windows."
There is no one right way to choose what to blog about, write about, share on social media, say or not say in casual conversation with co-workers, friends, neighbors, and so on. But there are certain ways of going wrong. Indulging a spirit of self-censoring timidity is one such way.
So ... I am thankful for the thoughtful, forthright, and friendly witness of Ryan Anderson to the truth about marriage as the union of man and woman as husband and wife. And I hope not to remain silent behind online stained glass windows ... even if that means doing something that leads to a professional dead end, like taking Justice Kennedy's pronouncements about substantive due process seriously on their own terms. There's no there there, and yet here we are. It's not too late to stop where we are going.
Thursday, October 29, 2015
A few concluding paragraphs in John Finnis's lecture on judicial power linked by Michael earlier helped me to understand part of what I found frustrating in reading the recent news story "Justice Kennedy says officials must follow law or resign."
Here is Finnis speculating about the drift toward the subjection of legislative power to judicial power:
Why, then, is the drift everywhere towards the subjection of legislative power, directly or indirectly, to judicial power? Why do many judges in many jurisdictions ever more confidently give judgments assuming the roles of constitution makers and legislators? Answers must remain speculative; the causes are various.
One cause is hidden in that word “jurisdiction” I used just then when I meant countries, political and civic communities of households, families, people. Discourse in law schools and courts increasingly locates its participants in a universe of standards of correct thought and decision, and of the incorrect and unacceptable, which are generated and shared among persons who speak as if they were nowhere in particular. And they can carry on this discourse, and make, commend or recommend the corresponding judicial decisions for whole countries and sets of countries with amazingly little pushback by those whom our constitutions still firmly designate as the makers of the law that shapes its people’s future. Why is some pushback in order? Why was and is that historic constitutional distribution of responsibilities sound?
One way of putting a sound answer is this. Pushback, seeking to adaptively restore that constitutional distribution, is timely and fitting because the members of a properly functioning legislature, chosen by persons who (with their families) will be affected, have to look each other in the eye, even while they are deciding, with no pretence that their decision is anything other than what it is: their personal choice of one kind of future, in preference to all others, for themselves, their fellow legislators, and the people they represent and live among. They do not (and cannot) make the claim that bearers of judicial power must at least profess: that this decision of ours about the law merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past. Or interpreting and applying commitments made (it is professed) over there in a haze of “global law”, made how or by whom no-one really can say, but identifiable and professable as rights and standards even by scholars and judges who in another conversation, eye to eye, might well admit their doubt or denial that there is really any moral right or wrong. – their belief that no value judgments are true: all are “subjective”.
That discourse community – or academic, NGO, judicial echo chamber – treats as strangers the legislators in merely local assemblies such as national Parliaments, and the politicians taken to be persons who are unskilled in that learned discourse’s latest tropes and precepts, and who fail to measure themselves against the standards of esteem or disesteem that prevail in a given decade in that community or echo chamber. There is urgent need for legislators who have retained or regained their sense of constitutional place and legitimacy, and who are aware that this whole style and movement of global juridical discourse and judicial reformism is -- like judicial process even at its best – a defective, inferior way for a historically constitutionally minded people to take responsibility for its own future.
There is a lot going on in these few paragraphs, not all of which directly applies in the United States. But still.
Can anyone imagine Justice Kennedy looking Kim Davis in the eye and telling her on the afternoon of June 26 that she must now accept and effectuate the Supreme Court's new understanding of marriage or else quit her job? Surely he could not do so with no pretence that he had not just changed the law.
Does anyone believe that that Justice Kennedy could describe Obergefell as a decision "about the law [that] merely or essentially conveys (transmits into the present and the future) positions that have already been settled by our law and are found in it by a learned art (Coke’s “artificial reason”) called interpretation, applying commitments made (at least in principle) back in the past"?
Tuesday, October 27, 2015
Thanks to Rick for posting Dean Kearney's 2015 Pallium Lecture. The lecture's concluding admonition is about the stance one should take toward the Supreme Court with respect to religious liberty. But its application can be generalized, as it is the verse that keeps coming to mind as I struggle to describe the reactions of many religious believers toward the Supreme Court these days:
“Put not your trust in princes.” I confess that the admonition is taken out of context, but is this not the right attitude for citizens of a democracy to cultivate? Princes in black robes are no more to be trusted to protect our freedoms than are any others.
