For those interested, I sat down today (virtually!) with journalist Mary Reichard at the Legal Docket podcast (a feature of “The World and Everything In It”) to discuss the Dobbs leak and why it so damages the Supreme Court as an institution. Here’s an excerpt:
MOVSESIAN: I know that people will look at this and say the important thing is abortion, why do we care that the justices are embarrassed? And I think that’s because, you know, people who think that way may not appreciate just how much is being undone, when members of the court think they cannot deliberate in confidence, when members of the court think that they can’t engage in a good faith discussion of the issues with their colleagues on the court, I think that really does threaten to destroy the institution in a way that will have very bad consequences for our law.
At Law and Liberty today, I have a review essay on Jacob Mchangama’s new book, Free Speech. Mchangama argues that the United States, and the world generally, needs to recommit to free speech principles before it is too late. I argue that the real problem is not a failure to believe in free speech, but a lack of social trust. Here’s an excerpt:
It is a striking feature of American life in the first quarter of the 21st century that we have somehow created a culture in which everyone feels aggrieved. This is especially true when it comes to free speech. Both conservatives and progressives believe their opponents are out to silence them—not just beat them in debates and prevail against them in elections, but intimidate them, put them on mute permanently, eliminate any possibility of resistance. Many on each side see the other as not simply wrong, but ill-motivated and dangerous, an existential threat to be defeated before it is too late.
This state of affairs is more the norm in American history than we care to admit. Perhaps because we see ourselves in providential terms—“the last best hope of earth,” as Lincoln said—Americans always have been sensitive to threats our democracy faces and often have worried about enemies within spreading “disinformation.” Eras of Good Feeling occur relatively rarely. Even so, the level of recrimination just now seems quite high, and many Americans apparently believe we must silence our opponents before they succeed in silencing us.
In Free Speech: A History from Socrates to Social Media, Jacob Mchangama maintains that a renewed commitment to free expression can help us through these perfervid times. Mchangama, a lawyer and the founder of Justitia, a human-rights organization in Denmark, has written a programmatic history that “connect[s] past speech controversies with the most pressing contemporary ones.” Today’s debates about free expression recapitulate those of long ago, he believes, and just as our ancestors did, we must defend the right to speak against those who would take it away.
To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others’ speech depends as much on culture as it does on law—and in today’s polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.
In First Things today, I argue that the leak of the Dobbs draft opinion this week differs from past SCOTUS leaks and poses a real danger for the Court. Here’s an excerpt:
Past leaks from law clerks typically have come after the Court has issued a decision. They often seem explained by desires to set the record straight for history or, perhaps, to demonstrate the leaker’s own significance (which, as a former clerk, I can attest to be typically little). If they come before a decision, leaks are usually spare and vague, hints at a likely vote tally or outcome. Such leaks do little to change the day-to-day workings of the Court.
But the leak of an entire draft opinion in the middle of deliberations in a vitally important case suggests something very different, a desire either to bully or destroy the Court as an effective institution. After this episode, justices will feel less secure about the confidentiality of their deliberations and think twice about what they put in drafts. The work of the Court will inevitably suffer. That is what makes this leak so damaging, however one feels about the ultimate issue at stake.
Over at the Volokh site, I have a post on last week’s decision in Ramirez v. Collier, in which the Supreme Court ruled in favor of a death-row inmate who argued that prison officials violated RLUIPA by refusing to allow him to have a clergy present at his execution. RLUIPA requires prison restrictions to meet strict scrutiny: the state must justify restrictions on religion by showing that it has chosen the least restrictive means of satisfying a compelling interest.
Strict scrutiny, which applies in many areas of constitutional law, in practice operates as a balancing test. Critics (including me) have pointed out that the test is inherently indeterminate, depending largely on the intuitions of the particular judges hearing a case. In a separate concurrence in Ramirez, Justice Kavanaugh argues that tradition can help make the test less subjective:
In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.
Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.
In Public Discourse today, I have an essay that explains why the Court has declined to address claims that Covid vaccine mandates in places like Maine and New York violate the First Amendment. Here’s an excerpt:
The Court has not explained its reasons in these cases. But the justices’ caution is not surprising, for a few reasons. First, religious exemption claims generally pose hard questions, which are particularly troublesome in this context. The COVID-19 pandemic has intensified divisions about the value of religion and religious freedom in our country, and the justices might wish to avoid doing something to provoke further conflict. Second, the Maine and New York lawsuits are currently at the preliminary injunction stage, and the factual records in the cases are still unclear. The Court might reasonably think that it should allow the lower courts an opportunity to consider the claims further before it issues any rulings. Finally, the Court might think that state and local governments will themselves see the prudence of offering religious exemptions, as many already have done, considering the difficulties vaccine mandates have created for healthcare and other services.
At Law and Liberty today, I have an essay on law in Shakespeare’s The Merchant of Venice,” in which I expand on some themes that Marc and I discussed in our recent Legal Spirits episode. Specifically, I explore the play’s lessons about the limits of law in a pluralist society:
For the people of Shakespeare’s day, Bloom writes, Venice represented the hope that society could transcend religious and cultural differences through commerce—or, rather, through commercial law. Classical liberal thinkers would call later it the doux commerce thesis: allow people to trade freely with each other and they would ignore religious and other differences, which get in the way of profit, and live together peaceably. The give-and-take of the market would train people to cooperate with one another and forego proselytizing. All that was necessary was that the state enforce people’s contracts on equal terms, neutrally and fairly, without giving one group or another the upper hand. Everything else would follow.
Venice was less serene and indifferent to religion than portrayed. But, as a symbol, the city was important. And by drawing the conflict as starkly as he does, Shakespeare means to ask whether the Venetian system can work where intercommunal divisions concern bedrock beliefs and ways of life. His answer is not hopeful. The dispute between Antonio and Shylock over charging interest reflects a deeper conflict about ultimate values that commerce and commercial law cannot resolve. “The law of Venice can force” the two men “to a temporary truce,” Bloom writes, “but in any crucial instance the conflict will re-emerge, and each will try to destroy the spirit of the law; for each has a different way of life which, if it were universalized within the city, would destroy that of the other. They have no common ground.”
Where such common ground does not exist, the law cannot create it. Law, even a neutral law of contracts, inevitably requires judgment: Which agreements should be enforced, and which should not? And judgment inevitably depends on the values people bring to the law from the wider culture. Where people share values, law does a tolerably good job resolving their disputes. One party wins and the other loses, but both can accept the legitimacy of the system. Where moral divisions run deep and the stakes are high, this is not possible. Law alone cannot persuade people to accept decisions that violate their most basic sense of right and wrong.
Religion journalist Kelsey Dallas, a past guest on Legal Spirits, interviews me in the Deseret News about my forthcoming essay in the Journal of Law and Religion on courts’ responses to Covid restrictions on public worship. Here’s a sample:
The COVID-19 pandemic has created all sorts of religious freedom conflict, as people of faith fight gathering restrictions, mask requirements and, more recently, vaccine mandates.
Your view on these legal battles likely depends on your professional, spiritual and political interests. Mark L. Movsesian, co-director of the Center for Law and Religion at St. John’s University in New York, saw them as opportunities to study the limits of the United States’ approach to religious liberty protections. . . .
When there are no easy, obvious answers, judicial bias can creep in. That’s always problematic, but it’s especially so at a time when liberal and conservative judges often have very different views on the value of faith and what should win out when religious freedom is in conflict with other rights.
“As long as we don’t have a common baseline for how important religion is compared to other things, we’re going to have inconsistent opinions” from the legal system, Movsesian said. And with inconsistent opinions comes political and social strife.
At the Law & Liberty site today, I have an essay on Steve Smith’s fine new book, Fictions, Lies, and the Authority of Law. I use the essay to address one of Steve’s central claims–our constitutional order is based on a fictional consent that has served us well over time. Can this fiction continue to bind together our increasingly fractured society? Here’s an excerpt from my essay:
Can these two conditions, “plausibility and payoff,” continue to hold? In a prologue, Smith notes that he largely finished this book in the fall of 2019 and could not consider all that has transpired in our country since then. Nonetheless, he doesn’t seem very hopeful, and it’s easy to see why. The events of the past two years suggest that America is coming apart in ways that make the beneficial fiction he describes increasingly hard to maintain. Increasing numbers of Americans no longer identify instinctively with the “We the People” in whose name the Constitution and laws bind us. Indeed, the National Archives now includes a trigger warning on its website for people accessing the Constitution, alerting readers to the “potentially harmful language” they will encounter in the document. As Smith writes, people who see themselves “as systematically oppressed or discriminated against . . . have little incentive to overlook the fictional quality of the ‘consent’ on which government’s assertion of authority depends.” And our officials seem increasingly dysfunctional—petty, gridlocked, and feckless, unable to end their squabbling long enough to handle a nationwide public-health emergency or withdraw from a military campaign in an ordered, dignified way.
Former CLR Fellow Jessica Wright ’14 began her legal career in Kabul, Afghanistan where she worked with a team of local and international lawyers on Afghan commercial and tax law matters, as well as Rule of Law Initiatives. She also served as a legal advisor to the Office of the President, and was an adjunct professor of law at the American University of Afghanistan. Now a litigation associate at DLA Piper in New York, Jessica reflects in this important post on the dire events unfolding in Afghanistan, and what the return of the Taliban means for the Afghan people.
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“It’s nearly spring again, and I’m still in Afghanistan, almost inexplicably. American airstrikes in the provinces are shifting Taliban sights on the cities, they say, and foreigners are advised to leave. Progress in law and institution building ebbs and flows, as do the foreign monies for projects, as do the people who run them in short, detached tours. Life is cyclical for almost everyone, turning in tedium or tragedy depending on whether one’s aim is a project benchmark or simply reaching home across town, unscathed.”
I wrote those words in the spring of 2018, just before I left Afghanistan for the last time. The Taliban’s spring offensive was about to begin, and I faced a direct threat from the ISI-backed Haqqani network. In truth, though, even then, Kabul didn’t feel like a war zone for more than a few days or hours at a time, and I always knew that if things went south, I could be on the next flight out. Expats are privileged to live with a sense of detachment in places like Afghanistan – we can view everyday life with its bomb blasts and security threats as a story to tell instead of a reality to live. Still, proximity to war changes the way we understand conflict – it personalizes the fight and deepens the relationships forged with a place and a people.
The speed at which the Taliban has advanced across Afghanistan in the last week has shocked nearly everyone I know, from seasoned journalists to well-connected Afghan politicians. Ten provincial capitals were seized by the Taliban in just six days: Shebergan, Sar-e pul, Kunduz, Taluqan, Aybak, Pul-e Khumri, and Faizabad in the north, Farah in the west, and Zaranj and Ghazni in the south. Understanding that the war in the provinces had definitively moved to the cities, Afghan friends began sending panicked messages asking for advice and visa references and Embassy contacts, hoping that with a little luck they could still make it out. Then, on August 13, two major cities fell: Herat, a vital cultural and economic hub on the border with Iran, and Kandahar, an important city in the southern Pashtun heartland. In quick succession, Mazar-i Sharif, the last holdout in the north, fell on August 14, and on Saturday, the Taliban took Jalalabad, the capital of Nangarhar province, cutting off Kabul from the east. Entire Afghan units surrendered to the Taliban, knowing that without U.S. support they could no longer continue to fight. Others laid down their arms in protest, unwilling to risk their lives on the battlefield for a hopeless cause and a government in shambles.
Colleagues on the ground in Kabul have reported a massive influx of refugees from the provinces. They tell stories of families weeping outside embassy gates and passport offices, desperately seeking a way out of the country. Many others have set up mattresses and makeshift tents in the local parks knowing they have nowhere else to run. As the weekend wore on, locals rushed to stock up on food and other necessities, and all the while American Chinooks and Black Hawks flew overhead at constant, regular intervals, serving as a brutal reminder that as foreigners escaped to safety, Afghans were trapped on the ground to face their fate alone.
On Sunday, as the Taliban continued its advance toward Kabul, President Ashraf Ghani and Vice President Amrullah Saleh relinquished power and fled the country, signaling the collapse of the Afghan government. In a post on his Facebook page, Ghani stated, “To avoid bloodshed, I thought it would be better to leave.” Shortly thereafter, Dr. Abdullah, the former Chief Executive Officer of Afghanistan, who remains in the country, sent a message to the people of Afghanistan asking them to stay calm. He assured them that “God will make [Ghani] accountable.” Former President Karzai, who also remains in Kabul, posted a photo of himself and his daughters with a message to the Taliban, asking them to provide security and safety for the people. The Taliban said they would not take Kabul by force, but when they reached the outskirts of the city on Sunday evening, they began making their way in to “prevent lawlessness.” Judging by the messages from my Afghan friends and colleagues, the mood had shifted from quiet panic to stoic resignation. They told me that the American flag at the U.S. Embassy had been taken down, and that the massive Afghan flag atop Wazir Akbar Khan hill was removed by the Taliban shortly thereafter. They sent pictures of Taliban leaders inside the Presidential Palace – once a serene fortress – and reported that groups of fighters were milling about on the streets carrying their distinctive white flag bearing the shahadah: “I bear witness that none deserves worship except God, and I bear witness that Muhammad is the messenger of God.” It felt as if everyone was holding their breath, expecting the bloodshed to start at any moment but still hoping, desperately, for some other outcome.
It is not yet clear what a Taliban regime will mean for the people of Afghanistan, but according to analysts, the insurgent group, ousted from power 20 years ago by a U.S.-led invasion, has been growing stronger for the last two decades, and the methods they employ to govern will likely be as brutal as they have been in the past. The Taliban has run a shadow state for years in the southern provinces, and residents of those areas report that gruesome beatings and executions remain commonplace. Researchers point out that the Taliban’s leadership has become savvier, which may in part account for its ability to seize the Afghan capital, but they caution that such change does not necessarily translate to more lenient rule.
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Islam has always been at the center of the lives of the Afghan people. In fact, a form of Sharia or Islamic law governed the legal process in Afghanistan until 1925. Traditional Islam in Afghanistan meant minimum government with little interference in people’s lives; everyday decisions were carried out by elders in the tribe and the community.” It was not until 1925 that King Amanullah introduced the first civil legal code, and not until 1946 that a Sharia faculty was set up at Kabul University, allowing an integration of traditional Sharia with modern law. “Another moderating factor for Islam in Afghanistan was the enormous popularity of Sufism, the trend of mystical Islam,” which is built on prayer, contemplation, music, and a “permanent quest for truth” (Ahmed Rashid describes Sufism and Islam in Afghanistan in his book, Taliban, from which the quotes in this section are taken).
The “austere Wahabbi creed of Saudi Arabia,” which opposed mystical Sufism, gained some traction in Afghanistan, but Islamic extremism had never flourished in earnest before the Taliban. There were indeed several traditional political Islamic movements, some of which sought a type of Muslim internationalism that would unite the ummah or Muslim world, and to achieve their political ends, “parties like the Pakistani Jamaat and Hikmetyar’s Hizb-e-Islami set up highly centralized modern parties organized along communist lines with a cell system, extreme secrecy, political indoctrination, and military training.” These movements were led by radical Islamicists, but they could be considered rather modern and forward-looking in comparison to the Taliban.
The Taliban’s interpretation of Islam, jihad, and social transformation echoes none of the Islamicist trends in Afghanistan. Rather, the Taliban’s particular interpretation of Islam stems from the teachings of semi-educated mullahs in the North-West Frontier Province (NWFP), who trained generations of Afghans in rural madrassas. Their interpretation of Sharia is heavily influenced by Pashtunwali, the tribal code of the Pashtuns, and the madrassas themselves were funded and influenced by Saudi Arabian Wahhabists. The Taliban are not advocates of learning or reform, and they accept “no concept of doubt except as sin and consider debate as little more than heresy.” In addition, the Taliban tend to be “poorly tutored in Islamic and Afghan history, knowledge of the Sharia and the Koran and the political and theoretical developments in the Muslim world during the twentieth century.”
When the Taliban first entered Kabul in 1996, the religious police beat men and women in the streets for not having long enough beards and for wearing the burka improperly. An intelligence agency was formed and staffed with thousands of professional spies and paid informers. Anyone who questioned the Taliban’s edicts were said to have questioned Islam itself and were punished severely. The Taliban massacred ethnic and religious minorities, and its subjugation of women was total. Their regime was built entirely on what amounted to myth: particularized beliefs, fears, and ideologies that had nothing to do with Islam itself or with Afghan cultural norms. The Taliban’s ban on every form of entertainment, for example, was based on the belief that entertainment, particularly music, strained the mind and hampered the study of Islam.
In recent years, the Taliban have sought to project a more moderate image and have shown some flexibility in their application of Sharia. In an Eid holiday message in May, the Taliban’s supreme leader Mullah Haibatullah Akhundzada stated, “The Islamic Emirate seeks cordial and positive relations based on mutual respect and good conduct with all neighboring, regional and world countries.” Many caution, however, that while Taliban leaders have become more adept politicians, they have not changed their goal of reinstating an Islamic emirate with the repressive laws and retrograde policies the world has seen before. As it currently stands, foreign powers have little to no leverage when it comes to ensuring that international humanitarian law is followed and that the rights and freedoms of the people are protected.
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What is happening in Afghanistan feels deeply personal to me. I have taught and worked with and come to know the vibrant younger generation of Afghans who desire peace and have worked, relentlessly, for a stable democracy. What will become of them now? Will they be able to study at university and operate businesses and run for office? Will Afghan journalists be able to publish stories, unfettered, or will the press become a propaganda arm of the new regime? And what about the women and girls? Will they be relegated to the home and denied an education and a livelihood? Will those intelligent, driven women who became law firm partners and political activists and influential artists be silenced and made to live a life in the shadows? These questions haunt me, and I struggle to imagine the Kabul I knew transformed into the bastion of a merciless Taliban state.
It is difficult to connect to tragedies from which we are far removed, but it is important to look to Afghanistan now. All of us would do well to remember that the Afghan people have suffered generation after generation of warfare and humanitarian crises, all at the hands of foreign powers. And there are dark days ahead.