Posted on by Marc O. DeGirolami

Implications of the Umpire Analogy in Judge Kavanaugh’s Scholarly Writing

Judge Brett Kavanaugh’s scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial “neutrality.” I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.

For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann’s book on statutory interpretation), he wrote: “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.” Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: “I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case.” And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.

It’s a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change.

Statutory Interpretation

Kavanaugh’s primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries–clear or ambiguous–to settle on. Kavanaugh argues that in consequence a judge’s predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it’s off and running with the substantive canons of interpretation.

Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her “best reading of the statute,” guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms (“dogs, pigs, sheep, and other animals” should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that “other animals” should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the “common denominator.” But I’m not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh’s “best reading of the statute” approach, one which he agrees must make use of context.

The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply “finding” clarity/ambiguity, of the judge’s predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public.

Constitutional Interpretation

Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, “rather indeterminate,” and at worst, “empty of real, determinate, objective meaning.” They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are “mood-setters.” And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.

Or consider the issue of exceptions to certain constitutional rights–the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral–non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas’s dissent in Whole Woman’s Health v. Hellerstedt). But one can see a critical unity in Kavanaugh’s objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.

Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: “At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases.” And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised “history and tradition,” together with “precedent,” as important for his judicial method in his acceptance last night.

We’ll have to wait and see if and how these threads come together if he is confirmed.

Posted on by Marc O. DeGirolami

Happy Independence Day

To our readers, Mark and I wish you a happy Fourth of July!

An independence from Great Britain. And a dependence and reliance on one another, as Benjamin Franklin recognized in his hanging together/hanging separately quip, made at the signing of the Declaration of Independence. (I have privately wondered whether we might find some space for a “Dependence Day” somewhere in the American calendar…below is a book that might give the holiday creators some inspiration.)

MacIntyre

Posted on by Marc O. DeGirolami · 1 Comment

NY Times Op Ed on the Court and the Culture

I have an op ed today in the New York Times co-authored with Kevin Walsh about the Supreme Court, the culture, and what to expect 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.

Posted on by Marc O. DeGirolami

Frazer, “God Against the Revolution”

The University of Kansas Press is known, for good reason, to be one of the most Loyalistsconsistently interesting and high quality presses for American legal and political history. Here is a fascinating new book about religious arguments against the American Revolution–a kind of obverse of what one sees in the Declaration of Independence (see, e.g., all that talk about what unalienable rights “endowed by their Creator” required of early Americans). The book is God Against the Revolution: The Loyalist Clergy’s Case Against the American Revolution (University of Kansas Press), by Gregg L. Frazer.

Because, it’s said, history is written by the victors, we know plenty about the Patriots’ cause in the American Revolution. But what about the perhaps one-third of the population who opposed independence? They too were Americans who loved the land they lived in, but their position is largely missing from our understanding of Revolution-era American political thought. With God against the Revolution, the first comprehensive account of the political thought of the American Loyalists, Gregg L. Frazer seeks to close this gap.

Because the Loyalists’ position was most clearly expressed by clergymen, God against the Revolution investigates the biblical, philosophical, and legal arguments articulated in Loyalist ministers’ writings, pamphlets, and sermons. The Loyalist ministers Frazer consults were not blind apologists for Great Britain; they criticized British excesses. But they challenged the Patriots claiming rights as Englishmen to be subject to English law. This is one of the many instances identified by Frazer in which the Loyalist arguments mirrored or inverted those of the Patriots, who demanded natural and English rights while denying freedom of religion, expression, and assembly, and due process of law to those with opposing views. Similarly the Loyalist ministers’ biblical arguments against revolution and in favor of subjection to authority resonate oddly with still familiar notions of Bible-invoking patriotism.

For a revolution built on demands for liberty, equality, and fairness of representation, God against Revolution raises sobering questions—about whether the Patriots were rational, legitimate representatives of the people, working in the best interests of Americans. A critical amendment to the history of American political thought, the book also serves as a cautionary tale in the heated political atmosphere of our time.

Posted on by Marc O. DeGirolami

“Great Christian Jurists in Spanish History” (Domingo & Martinez-Torron, eds.)

Here’s a wonderful looking collection of essays on some of the major figures in Spanish Spanish Juristsjudicial history, focusing on their Christian thought. It includes better known judges such as Francisco de Vitoria and Juan Donoso Cortes, as well as several that are new at least to me. A very interesting project: Great Christian Jurists in Spanish History (CUP), edited by Rafael Domingo and Javier Martínez-Torrón.

The Great Christian Jurists series comprises a library of national volumes of detailed biographies of leading jurists, judges and practitioners, assessing the impact of their Christian faith on the professional output of the individuals studied. Spanish legal culture, developed during the Spanish Golden Age, has had a significant influence on the legal norms and institutions that emerged in Europe and in Latin America. This volume examines the lives of twenty key personalities in Spanish legal history, in particular how their Christian faith was a factor in molding the evolution of law. Each chapter discusses a jurist within his or her intellectual and political context. All chapters have been written by distinguished legal scholars from Spain and around the world. This diversity of international and methodological perspectives gives the volume its unique character; it will appeal to scholars, lawyers, and students interested in the interplay between religion and law.

Posted on by Marc O. DeGirolami

Fraser, “Atheism, Fundamentalism and the Protestant Reformation”

In the “I knew it!” department. More seriously, here is a new book that argues for Frasercommon origins, intellectual dispositions, and weaknesses as between atheism and fundamentalism, all deriving ultimately from the Protestant Reformation: Atheism, Fundamentalism and the Protestant Reformation: Uncovering the Secret Sympathy (CUP) by Liam Jerrold Fraser.

In this study of new atheism and religious fundamentalism, this book advances two provocative – and surprising – arguments. Liam Jerrold Fraser argues that atheism and Protestant fundamentalism in Britain and America share a common historical origin in the English Reformation, and the crisis of authority inaugurated by the Reformers. This common origin generated two presuppositions crucial for both movements: a literalist understanding of scripture, and a disruptive understanding of divine activity in nature. Through an analysis of contemporary new atheist and Protestant fundamentalist texts, Fraser shows that these presuppositions continue to structure both groups, and support a range of shared biblical, scientific, and theological beliefs. Their common historical and intellectual structure ensures that new atheism and Protestant fundamentalism – while on the surface irreconcilably opposed – share a secret sympathy with one another, yet one which leaves them unstable, inconsistent, and unsustainable.

Posted on by Marc O. DeGirolami

Larsen, “John Stuart Mill: A Secular Life”

John Stuart Mill is an absolutely critical thinker for understanding so much of the philosophical basis of contemporary American law. From balancing tests to ideas of “harm” to the defense of free speech (at least a defense in a particular libertarian vein–see, e.g., Book II of On Liberty), one must know Mill to see how law speaks in the ways that it does.

Here is a new book that emphasizes the secularism of Mill’s thought: John Stuart Mill: A Secular Life (OUP) by Timothy Larsen. But in doing so, it also illuminates (as Maurice MillCowling once did from, as it were, the other direction) the deeply religious quality of Mill’s philosophy as the great “Saint of Rationalism.”

John Stuart Mill observed in his Autobiography that he was a rare case in nineteenth-century Britain because he had not lost his religion but never had any. He was a freethinker from beginning to end. What is not often realized, however, is that Mill’s life was nevertheless impinged upon by religion at every turn. This is true both of the close relationships that shaped him and of his own, internal thoughts. Mill was a religious sceptic, but not the kind of person which that term usually conjures up. The unexpected presence and prominence of spirituality is not only there in Mill’s late, startling essay, ‘Theism’, in which he makes the case for hope in God and in Christ. It is everywhere–in his immediate family, his best friends, and his vision for the future. It is even there in such a seemingly unlikely place as his Logic, which repeatedly addresses religious themes. John Stuart Mill: A Secular Life is a biography which follows one of Britain’s most well-respected intellectuals through all of the key moments in his life from falling in love to sitting in Parliament and beyond. It also explores his classic works including, On Liberty, Principles of Political Economy, Utilitarianism, and The Subjection of Women. In this well-researched study which offers original findings and insights, Timothy Larsen presents the Mill you never knew. The Mill that even some of his closest disciples never knew. This is John Stuart Mill, the Saint of Rationalism–a secular life and a spiritual life.

Posted on by Marc O. DeGirolami

Fea, “Believe Me”

Here’s one in the style of Mark Noll’s The Scandal of the Evangelical Mind–a book by an feaEvangelical Christian historian that is extremely critical of Evangelical politics, particularly the embrace by some Evangelicals of Donald Trump. The book is Believe Me: The Evangelical Road to Donald Trump (Eerdmans), by John Fea.

“Believe me” may be the most commonly used phrase in Donald Trump’s lexicon. Whether about building a wall or protecting a Christian heritage, the refrain has been constant. And to the surprise of many, a good 80 percent of white evangelicals have believed Trump—at least enough to help propel him into the White House.

Historian John Fea is not surprised, however—and in these pages he explains how we have arrived at this unprecedented moment in American politics. An evangelical Christian himself, Fea argues that the embrace of Donald Trump is the logical outcome of a long-standing evangelical approach to public life defined by the politics of fear, the pursuit of worldly power, and a nostalgic longing for an American past.

As insightful as it is timely, Fea’s Believe Me challenges Christians to replace fear with hope, the pursuit of power with humility, and nostalgia with history.

Posted on by Mark Movsesian

9780231141833Along with The LDS Church, Pentecostalism qualifies as America’s most lasting contribution to world religion. Pentecostalism is also America’s most successful religious export. A growing number of Christians around the world are Pentecostals, especially in Latin America. Columbia University Press has released a new study of the movement, Pentecostals in America, by religious studies scholar Arlene M. Sánchez Walsh (Azusa Pacific University). Here is the description from the publisher’s website:

Pentecostalism is one of the most significant modern movements in global Christianity today. A mixture of ecstatic expression and earnest piety, metaphysical nuance and embodied spirituality, it is far more than the stereotype of a supernatural sideshow. In this presumably secular era, Pentecostalism continues to grow, adapting to a diverse religious marketplace and becoming more racially and ethnically diverse. Originally an American phenomenon, it is now a globe-spanning religion.

In this book, Arlene M. Sánchez Walsh provides a thematic overview of Pentecostalism in America, covering Pentecostal faith and practices, gender and sexuality, race and ethnicity, trends and offshoots, and the future of American Pentecostalism. She also considers Pentecostalism’s spiritual lineages, examining colorful leaders, ordinary adherents, and prominent outliers, as well as its deep roots in American popular culture. She examines Pentecostalism as a narrative performance, aiming to explain what Pentecostalism is through the experiences and stories of its adherents. Sánchez Walsh treats this Christian movement with the critical eye it has often lacked, and places it in context within the larger narrative of American religious history. An indispensable introduction to Pentecostalism, rich with insights for experienced readers, Pentecostals in America is an essential study of a vibrant religious movement.

Posted on by Marc O. DeGirolami · 1 Comment

DeGirolami at Princeton in Spring 2019

Just a quick piece of happy Center news. I’ll be a visiting fellow at the James Madison Program in Princeton University’s Department of Politics next spring. Mark has enjoyed a very fruitful period there this spring, and I’m looking forward to learning from all of the wonderful folks who run and will participate in the program, as well as taking advantage of all that Princeton has to offer. I’ll be working on a book project (with my sometime co-author, Kevin Walsh) investigating the church-state worldview of George Washington, Patrick Henry, and John Marshall, and what happened to it over time, and why it did so.