Movsesian on the Karabakh Crisis

For those who are interested, at the Law & Liberty site today, I have an essay on the Karabakh War, now one month old. I argue that the war represents a civilizational clash between democracy and dictatorship and suggest what American can do to ease the crisis. Here’s an excerpt:

America should consider a range of options to help ease the Karabakh crisis, none of which would involve America as a participant in the conflict. First, it can send humanitarian assistance to the region, indirectly if necessary. Second, it can suspend the direct or third-party sale or transfer of military equipment and technology to Azerbaijan. America provided $100 million of military aid to Azerbaijan just in 2018 and 2019, much more than to any other country in the region, ostensibly to help Azerbaijan defend itself against Iran. With Azerbaijan openly purchasing weapons from Iran, that strategy seems counterproductive. America can also suspend military sales and transfers to Turkey while Turkey continues its belligerent policy in Karabakh and elsewhere. If this doesn’t work, America could impose sanctions on both countries.

Finally, America can continue to push Azerbaijan to cease hostilities, return to negotiations, and reach a diplomatic settlement of Karabakh’s status. (After agreeing to one US-brokered ceasefire last weekend, Azerbaijan immediately broke it.) A comprehensive settlement has been in sight for decades: Armenia returns most captured territories to Azerbaijan and allows refugees to return in exchange for some sort of independence for Karabakh. Michael Rubin argues in The National Interest that America should support this idea, which has a precedent in Kosovo: “remedial secession” to protect an endangered minority. After weeks of cluster bombing, not to mention the history of pogroms and other crimes, Karabakh Armenians can never be safe under Azeri rule.

You can read the whole essay here.

Video of Last Week’s Panel on the Caucasus

For those who are interested, the St. John’s University Institute for International Communication has posted a video of last week’s panel, “The Crisis in the Caucasus,” on the war in Karabakh. I participated, along with Alek Gevorkyan (St. John’s), Artyom Tonoyan (University of Minnesota), and Siobhan Nash-Marshall (Manhattanville College). Kudos to St. John’s Law 2L Isabel Arustamyan for helping to put it all together. The link is below:

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Legal Spirits Episode 027: Contemporary America and Late Imperial Rome

What are the primary sources of American notions of toleration: the Enlightenment or early Christianity? And why do so many see cultural parallels between America today and late imperial Rome? In our latest podcast, we chat with Professor Jed Atkins, a professor of classics at Duke University about these and other questions related to the nature and value of religious toleration, including its relationship to the virtue of justice. Professor Atkins’s presented a paper on Tertullian (as well as Augustine, St. Paul, and others) for our Colloquium in Law and Religion. Listen in as we broaden the lens to discuss these more general themes of cultural and legal significance today.

Panel on the Crisis in the Caucasus

A programming note: this coming Wednesday (October 21), I will participate in a panel here at St. John’s University on the war in Karabakh, “The Crisis in the Caucasus.” Other panelists include Siobhan Nash-Marshall (Manhattanville College) and Artyom Tonoyan (University of Minnesota). The event, which will cover the history of the conflict, its religious implications, and its importance for the international human-rights community, is sponsored by the university’s Institute for International Communication. Details and login information are available at the link.

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Movsesian on the Barrett Nomination

In First Things today, I have an essay on the Barrett nomination. I argue that Republicans and Democrats both play politics, but that Barrett deserves to be confirmed. Here’s an excerpt:

Another objection is that Judge Barrett will be an activist. Here the argument seems to be that, as a faithful Catholic and member of an ecumenical charismatic group, she will inevitably decide cases on the basis of her religious convictions rather than the law—“the dogma lives loudly within you” and so on. But no evidence of this sort of thing exists in her record as an appeals judge, though that record is, admittedly, brief. In her one essay that raises the subject, Judge Barrett suggests that in cases of conflict she would recuse herself rather than impose her Catholic convictions in place of the law, a position that arguably should concern Catholics more than non-Catholics. And, as my colleague Marc DeGirolami has explained, her writings about stare decisis—the idea that judges should stick to decided cases and not overrule them, even if judges think those cases are wrong—are well within the American legal tradition.

Moreover, as Judge Barrett pointed out in a speech at Hillsdale College last year, keeping one’s ideology out of judging is not a problem limited to Catholics, or believers generally. When “you think about the debate about whether someone’s religion has any bearing on their fitness for office,” she told the students, “it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law.” But that isn’t true. “People who have no faith, people who are not religious” also “have deeply held moral convictions,” she said. “And it’s just as important for those people to be sure . . . to set aside . . . personal moral convictions . . . and follow the law.”

The extent to which judges can and should keep personal moral convictions out of the law is of course a matter of debate. Some constitutional doctrines invite judges to import their convictions into the law, or at least make it difficult for judges to avoid doing so. One example is the “compelling interest test” in free-exercise law, which asks judges to evaluate whether the state has a compelling interest that justifies a burden on religious freedom. But there is no reason to think Judge Barrett would have a harder time setting aside her personal convictions than a secular justice would have setting aside his or hers. Besides, progressives have been arguing for decades that the bench should reflect diverse life experiences, which help judges apply the law in empathetic ways. It’s a little late in the day to argue such a thing is unthinkable.

You can read the whole essay here.

Philos Project Briefing on the Karabakh Crisis

The Philos Project, a think tank that promotes positive Christian engagement in the Middle East, hosting a briefing last week on the conflict in Nagorno-Karabakh. I participated, along with the Project’s Founder and Executive Director, Robert Nicholson, Research Fellow Van Der Megerdichian, and Armen Sahakyan, Executive Director of the Armenian National Committee of America. I covered the history of the Karabakh conflict, its religious implications, and why Christians in the West should care. A link is now available here.

On Judge Barrett, Stare Decisis, and Methodological Disagreement

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.

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