Thursday, July 5, 2018
Here's a short reflection I wrote regarding my friend and colleague, Judge Amy Coney Barrett, who is (apparently) being considered to replace Justice Anthony Kennedy. The bottom line (as I see it):
Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.
Wednesday, July 4, 2018
Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.
As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.
Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.
* * *
Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.
Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version."
The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.
The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.
The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.
* * *
The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.
It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.
This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.
* * *
Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.
Current events in our nation's capital make this Independence Day an especially opportune occasion to observe that Blanshardism is not finished. By Blandshardism I mean, of course, the activities of those who believe what wrote in his best-selling book, American Freedom and Catholic Power nearly seventy years ago: "the Catholic problem is still with us." Albert Einstein, Bertrand Russell, and McGeorge Bundy were among the books most famous fans. Following their master's lead, contemporary Blanshardians echo his call for a "resistance movement" to Catholics' "antidemocratic social policies." A catalogue of Blanshardian grievances against Catholics and their Church is at hand in an article (here) I wrote several years ago. The article closes with Blandshard's agreeing with Hilaire Belloc that holding and adhering to the Catholic view of things about how this world is to be arranged and governed ensures "monstrous conflict" with those who prefer a state that is the agent of "the new morality" (a term I borrow from Edward Rubin).
Of special salience in light of the aforementioned current events is the Blanshardian dogma that "overpopulation" encouraged by Catholic doctrine regarding human sexuality presents "the most basic and formidable threat to the future happiness of the human race." It would be a grave mistake to underestimate the force driving this anti-human program. Blandshard himself didn't shrink from aping the "three generations of imbeciles are enough" O.W. Holmes of Buck v. Bell in defending it: "Fortunately, neither the people nor the courts of the United States agree that there is anything necessarily wrong in depriving an insane or feebleminded person of the capacity to reproduce by a simple and relatively painless operation which does not even deprive him of the satisfaction of sex." Here one does well to recall that Holmes's opinion in Buck, from which the Catholic Pierce Butler alone dissented, was joined by Stone, Brandeis, Taft, Sutherland, Van Devanter, Stone, and, of course, McReynolds.
I am of the mainstream view that Buck v. Bell was wrong, but I am also of the view that Pierce v. Society of Sisters, a so-called "substantive due process" decision from which even Holmes did not dissent, and a decision contemporary neo-conservatives have a hard time justifying in terms of their judicial philosophy of choice, was and remains right. Be that as it may, our Supreme Court's power and authority to set aside acts of the legislature on the ground that they are substantively deficient are not going away, and for that sufficient reason it makes good sense for the Senators to inquire into the substantive views of judicial nominees. When the Senators do make those inquiries and make them openly, We the People can assess whether their own criteria for evaluating those views are Blanshardian, as they often are and will be, and then decide for ourselves if we will keep voting Blandsharians into high office. Blanshardians usually beget Blanshardians.
Monday, July 2, 2018
With the retirement of Justice Kennedy from the Supreme Court, law professors have been speculating how constitutional law may change with a new member of the Court. At the forefront of concern for many is the continued viability of Roe v. Wade, the decision that announced a nearly-absolute right to abortion of a pregnancy.
Given the ideological and political homogeneity of law professors generally and of constitutional law professors in particular, online discussions not surprisingly have been dominated by those who bemoan this possibility. Professorial posts typically frame the question in stark terms between, on the one hand, support for women's rights and gender equality, and on the other side, disrespect for women or even the design to undermine the progress of women toward professional and cultural equality. Indeed, on a general “listserv” of constitutional law professors, posts tend to assume that everyone is on the same page, to the point of outlining the strategy for preserving abortion rights by legal and political action and cheering the various advocates and organizations that champion “reproductive rights.” That anyone in the legal academy might disagree or that another value – such as protection of unborn life – might play a role in the debate appears not to have occurred to many or at least is seldom acknowledged.
While I have become mostly a reader and not poster on internet discussions in recent years, I was unable to resist this time, given the blessings of life that have washed over me recently, as explained below. And so into the "conlaw" professors’ discussion, I interjected this message last week:
Friends, just as a reminder, lest this become a pro-choice echo chamber as we see too often on abortion in the legal academy, tens of millions of Americans regard protecting the life of the unborn to be the most important civil rights movement of our time. One could as readily list many local pro-life organizations, simultaneously compassionate and passionate, who are dedicated to helping pregnant women avoid the Faustian bargain of abortion. I have had the opportunity to observe and provide support to families involved with these organizations, who have sacrificed greatly to bring into their homes new-borns of all races, backgrounds, and disability status.
More than half-a-century ago, my 15-year-old birth mother placed me for adoption after she had broken up with her high school classmate who was my birth father. That loving choice was the spark of multiple blessings to my adoptive family, including my parents who could not have children of their own and obviously to me in the opportunities I have had. Within just the past two weeks, I’ve learned the identity of my birth mother (from her participation in one of the DNA companies). That in turn has opened doors for me now to learn of five more sisters and two more brothers, as well as more than a dozen nieces and nephews. In the past two weeks, the joyful exchanges by phone, on email, and through Facebook have been overwhelming, moving me to tears nearly daily. I know I will be blessed by building relationships now with my larger family, unknown to me for nearly all my life.
Kevin Walsh and I have an op ed today in the New York Times about the Supreme Court, the culture, and what to hope for from whoever replaces Justice Anthony Kennedy. A bit:
[W]ith Justice Anthony Kennedy’s retirement last week, many of our fellow conservatives are suddenly buoyant. They believe everything is about to change. It is a perennial temptation. If only one or two justices had been different — a Robert Bork rather than an Anthony Kennedy, an “anybody else” rather than a David Souter — then, it is imagined, we would inhabit a different constitutional universe. The problem is simply a matter of personnel. Now at last we will get our chance to fix the country, they think.
Let us not get our hopes too high. Even if Justice Kennedy is replaced with an actual conservative, as we hope and expect, the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least. Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.
Why? Because law, like politics, generally conforms to the culture. The Supreme Court is shaped by the culture that surrounds it; its instinct is to follow, not to lead. Consider the sexual autonomy cases of the 1960s and ’70s, or the cases involving civic displays of religion in the 1980s and ’90s, or the gay rights cases of this century. In each instance, the court channeled the views of a preferred emerging cultural constituency — about the sexual revolution, about secularization, about same-sex relationships — in recognizing the corresponding rights. The Psalmist was right to warn against trust in princes…
To be sure, law is important. It forms the culture around us, just as much as it is informed by it. Indeed, the Supreme Court has made itself a powerful symbol of an American yearning to resolve profound cultural conflict once and for all. It has come to exercise a potent didactic function over the past several decades. It instructs us, scolds us and exhorts us to follow it. It has become a relentless smasher and refashioner of rights.
As some feverishly speculate about which 5-to-4 decisions of the recent past will soon vanish, we counsel patience. Conservatives have rightly criticized the judicial manufacture of rights; let us not make the mirror-image mistake of urging immediate doctrinal demolition. The legal landscape may change for the better through erosion and accretion, rather than avulsion and ill-considered construction.
Chief Justice John Marshall once wrote that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” But today, new constitutional law is born and killed off in waves in response to the felt imperatives of cultural change. This is the Supreme Court we have now, borne of the culture we have now. No bright, shiny, new justice can change it alone.
The holding in Janus v. AFSCME last week that compulsory public sector agency fees are unconstitutional ushered in some commentary about the relationship between Janus and the long tradition in Catholic social thought of supporting unionization. The USCCB filed an amicus brief in the case supporting the union side, Bishop Frank Dewane (Bishop of Venice, Florida and Chairman of the USCCB Committe on Domestic Justice and Human Development) issued a statement expressing disappointment with the decision in Janus, and Michael Sean Winters has a piece here condemning the decision. On the other side, Bishop Thomas Paprocki of Springfield, Illinois tweeted a message of approval for the outcome in Janus, which resulted in a series of replies with a tone and vehemence that are typical of Catholic Twitter.
I’ve already staked out my position (as has Rick Garnett here at MOJ), but here are a couple of clarifying questions about the issues in Janus as they pertain to Catholic social teaching that—I hope—might be the start of a better conversation than “unions—hooray!” or “unions—boo!”.
1. Do public sector unions pose distinctive issues from the concerns that ground the Catholic social tradition’s support for unions?
One of the consistent themes in the arguments for the outcome in Janus is that agency shop arrangements in the public sector are meaningfully different than such arrangements in the private sector. The “management” on the other side of the bargaining table in public employment is the state whose leaders are the subject of lobbying and political support from…the public employee union. Rerum Novarum and the ensuing line of Catholic teaching on unionization were primarily addressed to the urgent necessity of unions for trade workers in the private sector. In light of the rise of wage labor amid industrialization, Leo XIII focused on the problem of commutative justice and how the formation of workers’ associations would be ordered to the common good.
That does not entail, of course, that Catholic social teaching is irrelevant to public sector unions—but the more fruitful conversation, I think, would be somewhere in between the view that CST on unions applies simply and conterminously between public and private sector unions and the view that CST has nothing to do at all with public employee unions. Do the principles of CST supporting the rights of workers to organize apply with full or modified force in the public sector union context? There is a long scholarly literature about public sector bargaining that highlights the inelastic demand for services and bargaining power of public employee unions, with important policy and economic consequences. To my knowledge, Catholic social teaching has not engaged with that literature.
2. How should we understand the relation between the Catholic social tradition on rights of association and First Amendment freedom of speech?
As presented in litigation, Janus is foremost a case about the scope of First Amendment rights and not about whether unions are a good thing or a bad thing. Specifically, the case was about the claim by plaintiffs such as Mark Janus that the payment of an agency fee amounted to compulsory subsidization of political activity (and more precisely, that Abood’s distinction between chargeable expenses for collective bargaining activities and expenses for political activities was not sustainable, see pp. 28-31 of the slip opinion). Pace Eugene Volokh and Will Baude’s interesting and thoughtful brief, both the majority opinion by Justice Alito and the dissent by Justice Kagan assumed agency fees pose some plausible First Amendment burden on employees such as Janus. Their disagreement was over whether that burden runs headlong into a “no compelled speech” principle (Alito) or whether that burden is justified by a deferential, lower level of scrutiny derived from the government employee speech line of cases coming out of Pickering v. Board of Education (Kagan).
It seems to me that Catholic social teaching underdetermines the answer to this First Amendment problem, in large part because CST on rights of workers' associations begins with a thick understanding of the common good and civil society (which is served by maintenance of a living wage for laborers to support the family) and gets around belatedly to rights of freedom of expression. Catholic social thought has not developed much by way of an account of why and when freedom of speech should be legally protected, and Millian liberal or “marketplace of ideas” accounts presumably sit uneasily with the Catholic understanding of law and politics. Apart from a passing mention of freedom of speech in Pacem in Terris or perhaps by derivation from religious freedom in Dignitatis Humanae, there just isn’t much in the tradition (and the concerns about “indifferentism” in, say Pope Gregory XVI’s Mirari Vos did not lend themselves to a robust doctrine of freedom of speech, to put it mildly). Even John Courtney Murray—usually associated with an irenic assimilation of Catholic political thought and American constitutional law—struggles in this little known essay to square the Catholic commitment to the "moral basis of government" and "ordered liberty" with the then-nascent U.S. Supreme Court caselaw on free speech. All of which is—again—not to say that Catholic social teaching doesn’t speak to the question at all (and perhaps says all the worse for the individualism of American constitutional rights discourse), but only that CST does not resolve the constitutional question in a straightforward way.
Sunday, July 1, 2018
Alexander Hamilton predicted that the Supreme Court would be the weakest of the national government's three branches. Many would say that things have not turned out that way and would hold up Justice Kennedy's three decades on the Court as an example.
Thursday, June 28, 2018
I've posted a piece at America critiquing the travel-ban decision. A bit:
[T]here was room in [the immigration] precedents for the court to write a narrow opinion focusing on Mr. Trump’s uniquely blatant and irresponsible statements that suggested his intent as the sole decision-maker. True, such a ruling would have to have been narrow, to keep from setting a precedent for serious intrusions on executive authority in future cases.
But the risks from such an opinion would have been worth taking. The president’s statements were virtually unprecedented in modern times in explicitly labeling all members of a religion a danger to the nation....
And the consequences of the statements extend [beyond those directly connected to immigrant applicants], poisoning the culture in the country for Muslims already here. Reports of anti-Muslim vandalism and other crimes have spiked in the wake of Mr. Trump’s statements.
The consequences are also harmful for religious freedom as a general principle. Republican support of Mr. Trump’s hostility to Muslims from the beginning (one March 2016 poll showed that 71 percent of Republican voters backed a temporary “total and complete shutdown” of Muslims entering the United States) has helped accelerate the perception that religious freedom is nothing more than a tool for each side to use or discard according to what supports its preferred policy positions. Progressives are selective, too, in denigrating the religious freedom of social conservatives. To preserve religious freedom as a principle, not a tool, we must enforce it for all.
Among the sources of comfort:
[G]iven the court majority’s clear emphasis on the immigration context, we can have reasonable confidence that courts will still act decisively to forbid official animus against Muslims in domestic matters: hostile local resistance to mosques, officials’ attacks on copies of the Quran and so forth. The travel ban decision specifically endorses, and must not be read to undermine, that bedrock principle.
Although much of the commentary about yesterday’s decision in Janus v. AFSCME couldn’t resist jumping right to politically partisan conservative/liberal descriptions of the case, it seems to me lawyers and law profs should spend a little time on the free speech doctrinal aspects of Janus. So here’s one rough take: Janus is a great vehicle for understanding the differences between formalism and functionalism (along the lines, say, of this piece by Bill Eskridge) in First Amendment law, or, stated otherwise, Justice Alito’s opinion overruling Abood v. Detroit Board of Education marks the ongoing demise of the disco era in free speech jurisprudence.
Reading the characterizations of Abood in the majority opinion by Justice Alito and the dissent by Justice Kagan, I was struck by how much Abood was a creature of the 1970s Supreme Court. There’s scarcely a doctrinal test or free speech category to be found in Justice Stewart’s opinion, but there is a lot of gesturing toward fairness (“free rider” problems), legislative judgments in the labor area, policy considerations (the concern with “labor peace”), and splitting the difference (in Abood, by separating out agency fees for chargeable collective bargaining expenses and fees that go to political activities). In those respects, Abood is broadly of a piece with other free speech cases from the era such as Buckley v. Valeo, Wooley v. Maynard, Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, and the series of obscenity cases coming out of Miller v. California.
Following Eskridge’s description of functionalism, these cases employed standards rather than rules, favored multi-factor balancing tests (when a test is formulated at all), often discussed various policy “interests” that were in play as part of a process of induction from those interests to a holding, and sometimes invoked ad hoc principles that resisted wider application (such as the “secondary effects” doctrine of Renton v. Playtime Theatres, which is at the outer edge of the era in 1986). Even the case that has come to be seen as the beginning of the distinction between content-based and content-neutral regulation of speech, Chicago v. Mosley from 1972, is a gauzy discussion of free speech and the Equal Protection Clause. (There is probably a similar story about the Free Exercise Clause cases of that period, most especially Wisconsin v. Yoder.)
But just like Josh Neff in Whit Stillman’s The Last Days of Disco tries too hard in one of the final scenes of the movie to hold on to the era (“Disco was too great, and too much fun, to be gone forever! It's got to come back someday. I just hope it will be in our own lifetimes.”), free speech law has left behind the functionalism of the 1970s and 80s and moved in a decidedly more formalist direction. Cases now come in sharply delineated categories, the application of strict scrutiny to all content-based regulation of speech does a lot of work across a wide range of cases (as seen this week in NIFLA v. Becerra), and opinions often begin with a principle (in Janus, no compelled subsidization of speech) and reason deductively to the holding (Abood got around to a brief discussion of the "impact upon [employees'] First Amendment interests" after several pages of discussion about agency shop arrangements and labor policy). It's hard to know when the disco era started coming to an end, but Justice Scalia's opinion in RAV v. St. Paul in 1992 is a good marker.
This is all very general, of course, with a lot of details to be filled in. But in the opinions by Justices Alito and Kagan, I think we can see the difference between the functionalism of the free speech disco era and the formalism of today. For what it’s worth, my own views are strongly in the direction of formalism, and I think Justice Alito’s opinion is thoroughly correct—a topic for another day.
Wednesday, June 27, 2018
The Supreme Court's decision in Janus is here. In my view, while the stare decisis concerns about overruling Abood (which I have always thought was, to quote Justice Aliton, "poorly reasoned"), this result is the correct one, in that Abood and mandatory agency-fees had become outliers in the Court's First Amendment doctrine and precedents. There will, of course, be a flood of commentary focusing on the political /partisan implications of the ruling, but I don't believe that commentary should obscure what I regard as the basic point that a public employee should not be required, as a condition of public employment, to support financially (and therefore, under the Court's precedents, to associate with) partisan and political activities to which he or she objects.
I'll also note -- as I have many (Ed.: Too many, Rick) times on this blog, that it is (with all due respect to the USCCB) mistaken to claim that Rerum Novarum, or the Church's social teaching on work and workers' rights more generally, requires or even counsels support for legal requirements that public employees support the partisan activities of today's public-employee unions. Nor is it "libertarian," or "individualistic," or "Randian," etc., to conclude that a Supreme Court charged with enforcing the First Amendment should invalidate such requirements.
Workers (in the public and in the private sectors) have a constitutional and moral right to form associations and to advocate in and through those associations for their interests. They do not, in my view, have either a constitutional or a moral right to enlist government power to require those who have different views about those interests to contribute to their partisan or inescapably political activities. (It is clear that the pre-Janus requirements that public-employee unions allow objecting workers to withhold funds for ideological activities are not strictly observed.)
I welcome others' reactions, of course!