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.
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:
A programming note: tomorrow evening I’ll moderate a panel at St. John’s on the new Court term. The panel, hosted by the law school’s chapter of the Federalist Society, will feature Judge Richard Sullivan of the Second Circuit (and the Center’s Board of Advisers) and Judge Rachel Kovner of the Eastern District. Among the cases we’ll discuss are Tanzin v. Tamvir and Fulton v. City of Philadelphia, two law and religion cases Marc and I have covered in our Legal Spirits podcasts. Fulton, in particular, could be a blockbuster and I’m eager to hear with Judges Sullivan and Kovner have to say about it. The event is open to all St. John’s Law students; please contact the Fed Soc chapter for info.
A programming note: next Friday, October 2, at 11:00 am, the Center will co-host a webinar, “Law, Religion, and Coronavirus in the United States: A Six-Month Assessment.” The webinar will feature commentary from law professors, law students, and lawyers on the implications of the coronavirus pandemic, as well as economic and racial justice concerns raised over the past six months. Co-sponsors include the International Center for Law and Religion Studies at Brigham Young University Law School; the Center for the Study of Law and Religion at Emory University Law School; the Program on Church, State & Society at Notre Dame Law School; and the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University’s Charles Widger School of Law. The roster of speakers and further details are available here. Hope you can join us for what will be an excellent program!
At the Law & Liberty site today, I have a review of Louis Fisher’s new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here’s an excerpt:
But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that “judicial rulings must be obeyed as long as they are intra rather than ultra vires”—that is, as long as they are plausibly “within a court’s authority to render”—and “not unreasonable as judged from the perspective of the President and a majority of the American people.” If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.
Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court’s disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court’s decisions on constitutional questions, Lincoln conceded, “should control, not only the particular cases decided, but the general policy of the country.” Nevertheless, “[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this.” . . .
Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. “No matter what evidence is presented,” he writes, “some scholars and courts will continue to rely on and promote the doctrine of judicial finality.” But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court’s decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.
Sociologists of religion often distinguish “believing” from “belonging.” There is “belonging without believing”–being formally part of a religious community without having religious convictions–and “believing without belonging”–subscribing to religious claims while remaining formally outside a religious community. For what it’s worth, we Americans tend more towards the latter, especially now, with the rise of the Nones.
Cambridge University Press has released an interesting-looking book by Joseph David (Sapir Academic College, Israel), Kinship, Law and Politics: An Anatomy of Belonging, which no doubt touches on these issues. Here’s the description from the Cambridge site:
Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.
Both Marc and I have had the opportunity to serve (at different times) as visiting fellows at Princeton’s James Madison Program in American Ideals and Institutions. We both enjoyed the experience tremendously and recommend it to anyone with an interest in research and academic exchange. The Program is soliciting applications for fellows for next year. You can find out more here. The deadline is December 1. Questions? Please email Brad Wilson or Matt Franck. (But, really, you should do it!).
At the First Things site this week, I have an essay on last term’s Religion Clause cases at the Supreme Court. I argue that the cases reflect the Court’s attempt to reach a modus vivendi in the culture wars between progressives and the traditionally religious on issues of sexuality, gender, and equality. Taken together, the cases suggest the Court is prepared to acquiesce to the dominant progressive consensus while allowing religious institutions some space to dissent.
Here’s an excerpt:
Bostock suggests the Justices, including conservatives like Gorsuch and Roberts, are prepared to accede to the progressive view of sexuality and gender. But the Court’s hints about lingering free exercise issues imply it will afford religious institutions space to dissent. Other decisions from last Term confirm this reading. TakeEspinoza v. Montana Department of Revenue, the Blaine Amendment case. The Court held, 5-4, that the Montana Constitution’s Blaine Amendment, which prohibits state funding for private religious schools, violated the First Amendment’s Free Exercise Clause. A state may not exclude schools from a funding program simply because of the schools’ religious “status” or “character,” Chief Justice Roberts wrote. “A State need not subsidize private education,” he explained. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Espinoza is a case about equality, but also has implications for debates surrounding sexuality and gender. It’s no secret that many, if not most, private religious schools hold to traditional understandings of sexuality and gender. In fact, parents often choose to send their children to religious schools precisely to avoid the progressivism that pervades public education. Allowing religious schools to receive public assistance on an equal basis with secular schools could make it easier for the traditionally religious to pass on their values to the next generation.
The Court’s holding that in principle the state must afford benefits to private religious schools on an equal basis with private secular schools is thus important for the traditionally religious. Still, the Court’s focus on a school’s religious “status” raises some questions. Even if discrimination on the basis of a school’s religious affiliation is illegal, it remains unclear, under the Court’s decision, whether a state may restrict funding because the school’s program is at odds with progressive understandings of equality. The Espinoza Court left that question open, though it hinted that discrimination based on a school’s religious “use” of state funds also could be constitutionally problematic.
At the Liberty Fund site this morning, I have an essay on the scarcity of religious belief among American law professors. I explore the reasons for the scarcity and the effect the scarcity has on American legal education. And I reflect a bit on my own career choices. Here’s an excerpt:
This leads to the third question: what, if anything, should be done? Law schools could do more to seek out and promote candidates who bring religious perspectives to their work and teaching—something that would be entirely consistent with the laudable goal of increasing the representation of ethnic and racial minorities on law school faculties. I doubt such an effort will be forthcoming, though. For the reasons I’ve explained, most law professors see religious perspectives as irrelevant to their work and don’t perceive their absence as a serious problem. This is true even at law schools with religious affiliations—again, with some notable exceptions. Besides, increasing ideological diversity and inclusiveness is not a priority for most law faculties.
This is a pity, because religious perspectives on law would offer much to our students. It is not simply a matter of knowing the historical foundations of our laws or appreciating the critiques of the past. Religious perspectives would offer students insights into current legal controversies. For example, in America today, we are debating whether the state may constitutionally order churches to close during an epidemic. In legal terms, the cases often turn on a balancing test, in which courts weigh the government’s interest in curtailing an epidemic against the burden that closure imposes on the practice of religion. To understand the cases, students need to hear, not only the secular perspectives of most law professors, but the perspectives of people inside faith communities, who can explain why believers find orders to close such an imposition. The comparative absence of religious law professors makes it less likely students will hear both sides.
At the First Things site today, I have an essay on the current round of church closures cases. To understand these cases, one has to cut through doctrinal details and focus on the factor that most drives the judges’ decisions: the need to defer to public health authorities during a crisis. That’s usually sensible. Judges are not epidemiologists, and they are not accountable if they get things wrong. But local authorities have begun acting in ways that betray that trust:
In the last couple of weeks, local authorities have squandered much of their credibility. For months, public health authorities have told Americans that gatherings of more than a few people, even outdoors and with social distancing, should not take place because of the grave risk of contagion. Families could not even have funerals for loved ones. Now, however, many of those same public health authorities say (while others remain silent) that mass protests can and should go forward, given the issues involved. Combatting racism and police brutality is profoundly important. But that’s a separate question from whether the gatherings pose a public health risk. As Ross Douthat wrote, the virus doesn’t care why someone is protesting.
Moreover, in making these arguments, some local officials have expressly disparaged religion. Here in New York, Mayor de Blasio used dismissive terms to explain why the city has permitted protests but forbidden Hasidic funerals: Religion, the mayor said, was simply not as important. The mayor is entitled to his opinion; probably most New Yorkers agree with him. But his statements—and those of other elected officials—should make courts skeptical about deferring to the judgment of local authorities.