Posted on by Marc O. DeGirolami

Earthly and Infernal Judges

Justice Scalia has caused quite a stir by confessing to the New York Magazine that he believes in hell. I suppose that belief in heaven is deemed somewhat less distressing today, though perhaps just as off the wall. Hell is very unfashionable–indeed, tiresomely obsolete.

The reporter in this Huffington Post story wonders how belief in heaven Minos the Judgeand hell affects Justice Scalia’s judgment on the Supreme Court. But of course, if hell exists, that’s a perfectly trivial matter. What he ought to be asking about is the far more relevant and important question of how judgment is meted out in hell.

As to that issue, fortunately we have an unimpeachable authority:

There stands Minos horribly, and snarls;
Examines the transgressions at the entrance;
Judges, and sends according as he girds him.
I say, that when an evil spirit
Comes before him, wholly it confesses;
And this discriminator of transgressions
Sees what place in Hell is meet for it;
Girds himself with his tail as many times
As grades he wishes it should be thrust down.
Always before him many of them stand;
They go by turns each one unto the judgment;
They speak, and hear, and then are downward hurled.

Dante, The Divine Comedy: Inferno, Canto V.

Posted on by Marc O. DeGirolami · 1 Comment

Reflections from the City of God: On the Dilemmas of the Judge

This week’s selection from the City of God comes again from Book XIX, this City of Mentime from Chapter 6. The context is the broad theme elaborated in Chapter 4–that though the virtues of this life are “its best and most useful possessions,” they are in the end only constant reminders of the miseries of this life and cannot be the final good: “Salvation, such as it shall be in the world to come, shall itself be our final happiness.” The immediate chapters that follow Chapter 4 represent particular ruminations on and applications of the theme. Chapter 6 considers “the error of human judgments when the truth is hidden.”

The problem for judges in the earthly city is that they are required to pass judgment but that they “cannot discern the consciences of those at their bar.” Their judgments are therefore “melancholy and lamentable.” All the more so because judges are driven to use coercive methods to compensate for their ignorance of the truth, which in turn drives the innocent to confess falsely, “[a]nd when he has been condemned and put to death the judge is still in ignorance whether he has put to death an innocent or a guilty person….[C]onsequently he has both tortured an innocent man to discover his innocence, and has put him to death without discovering it.” Augustine paints a dark picture of justice in the earthly city in this chapter.

The problem, moreover, is not one of the specific coercive methods used by the judicial systems in particular earthly cities (though several sources note Augustine’s opposition in several letters to torture and capital punishment). As Oliver O’Donovan puts it: “We shall miss the point of this if we confine ourselves to observations about the barbarous laws of evidence which obtained in the late empire….For [Augustine] it is a universal problem about judicial process everywhere. It is a guess as to which party is lying and which telling the truth, and any inquisitorial process adopted to reduce the element of hazard may backfire and defeat its own ends.” Oliver O’Donovan, “The Political Thought of City of God 19,” in Bonds of Imperfection: Christian Politics, Past and Present 70 (2003).  An interesting feature of Augustine’s discussion about torture in this context is that it emphasizes consequentialist considerations–the trouble with torture that Augustine targets here is that it does not assist, and in fact may be counterproductive, in ascertaining the truth. See Henry Chadwick, Augustine of Hippo: A Life 140 (2009). And yet, the problem of the elusiveness of truth is not resolved by a refusal to give judgment. Thus arises the dilemma: the necessity to give judgement in the earthly city together with the knowledge that ignorance of the truth will infect the judgment.

I was especially struck by Augustine’s focus in the very last part of this selection not on the substance of the judgment, or on the methods to be used in judging, but on the mood or cast of mind that the dilemmas of the judge ought to inspire in him (“wise” is not an honorific here). Augustine is interested in what the miseries of judgment do for the character of the judge–and what they ought to do–as he contemplates the fulfillment of his duties in the earthly city:

If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty. And he thinks it no wickedness that innocent witnesses are tortured regarding the crimes of which other men are accused; or that the accused are put to the torture, so that they are often overcome with anguish, and, though innocent, make false confessions regarding themselves, and are punished; or that, though they be not condemned to die, they often die during, or in consequence of, the torture; or that sometimes the accusers, who perhaps have been prompted by a desire to benefit society by bringing criminals to justice, are themselves condemned through the ignorance of the judge, because they are unable to prove the truth of their accusations though they are true, and because the witnesses lie, and the accused endures the torture without being moved to confession. These numerous and important evils he does not consider sins; for the wise judge does these things, not with any intention of doing harm, but because his ignorance compels him, and because human society claims him as a judge. But though we therefore acquit the judge of malice, we must nonetheless condemn human life as miserable. And if he is compelled to torture and punish the innocent because his office and his ignorance constrain him, is he a happy as well as a guiltless man? Surely it were proof of more profound considerateness and finer feeling were he to recognize the misery of these necessities, and shrink from his own implication in that misery; and had he any piety about him, he would cry to God: “From my necessities deliver Thou me.”

Posted on by Marc O. DeGirolami

Judge Henry Friendly on the Establishment Clause

Here’s an interesting selection from David Dorsen’s recent superb biography of renowned Second Circuit Judge Henry Friendly. The passage is about the Establishment Clause, with particular reference to the issue of “shared time” remedial education by public school teachers in religious schools and the Supreme Court’s decision Aguilar v. Felton. The passage is neat because it shows the fashion in which an intermediate appellate judge managed hierarchical constraint and substantive preference in crafting a decision. I’ll have some more on this general issue soon, but here’s Dorsen (at 162-63):

[I]n 1984, a time of doctrinal uncertainty and confusing precedents [ed.: when has this not been true?], Friendly wrote the Second Circuit’s opinion in Felton v. Secretary, Dept. of Education, where, when other programs had proven ineffectual, New York City sent public school teachers into nonpublic schools, including religious schools, to provide remedial instruction to educationally deprived children. State law prohibited public school teachers and their supervisors, who were entirely in charge of the program, from involving themselves in religious activities or content. In a suit by taxpayers Friendly said that while he accepted the good faith of the city and the value of the program, the program was unconstitutional: “[T]he Establishment Clause, as it has been interpreted by the Supreme Court, constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here.” His analysis of the Court’s cases

leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school….To be sufficiently certain that public employees, in a program like the present one, will maintain strict religious neutrality, they and the institutions in which they work must be subjected to ‘comprehensive, discriminating and continuing state surveillance.’ This itself is a constitutionally excessive entanglement of church and state.

Precedent did not require a search of the record to find entanglement; the mere possibility was sufficient to reject the program.

Dorsen goes on to note that Friendly’s separationist view of the Establishment Clause (“The Establishment Clause was the most notable constitutional-law area in which Friendly sided with the Supreme Court’s liberal wing”) coincided nicely with what was then the Supreme Court’s prevailing view, so that he could claim plausibly that he was “just following the Supreme Court.” “Nevertheless,” Dorsen writes,

Friendly structured the opinion in a manner that increased the likelihood that the Supreme Court would affirm him. He placed heavy reliance on Meek v. Pittenger, virtually the same as Felton, including on the problem of entanglement, which held unconstitutional a secular textbook program for private schools. He later explained that in writing the opinion as he did his object “was to make the [Supreme] Court face up to the fact that it could not sustain the New York program without overruling, in contrast to distinguishing, Meek v. Pittenger. I thought that this, as well as some of the other considerations developed in the opinion, might give a little pause to Blackmun and Powell about the erosion of the establishment clause.”

If you read through Justice Brennan’s opinion for the Court in Aguilar v. Felton,  you’ll see that he relies heavily on Meek too. And, as Friendly half-predicted, Justice Powell’s concurrence goes on at length not only about Meek, but it also specifically relies on and emphasizes Judge Friendly’s reading of Meek.

It’s also interesting that none of the dissenting opinions in Aguilar distinguished Meek–another very strong point in support of Judge Friendly’s craftsmanship. Justice O’Connor instead wrote that “experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom….[I]t is time to acknowledge that the risk identified in Meek was greatly exaggerated.” Justice Rehnquist’s dissent does not mention Meek at all, presumably because he continued to dissent from it. And Chief Justice Burger explicitly states that he dissents in Aguilar for the same reasons as he dissented in Meek.

Of course, Agostini v. Felton, decided in 1997, overruled Aguilar and Justice O’Connor’s opinion carried the day (5-4): “We have abandoned the presumption in Meek and [School Dist. of Grand Rapids v.] Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” But that course reversal only highlights the importance of seeing how a master like Judge Friendly went about his work.

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Lipez on The Judaism of Louis Brandeis

Hon. Kermit Lipez (US Court of Appeals, 1st Circuit) has posted Doing Justice: The Judaism of Louis Brandeis. The abstract follows.

There are many ways to think about justice, some philosophical, others more pragmatic. My own leanings are pragmatic. I have never been embarrassed to say that “justice means doing the right thing,” understanding that some elaboration may be necessary. Nonetheless, it was reassuring to discover that the great Supreme Court Justice Louis Brandeis had a similar pragmatic bent. I made this discovery when I was preparing a Yom Kippur sermon about Justice Brandeis. I had been puzzled for some time by Justice Brandeis famous statement, “Justice is but truth in action.” What exactly did he mean? Although the answer to that question, set forth in my sermon, includes a discussion of Justice Brandeis attitude toward his Judaism, I think that discussion has relevance for lawyers and judges of all religions. That relevance should not be surprising. There is a commonality between law and religion. They both teach us to do the right thing.

Posted on by Marc O. DeGirolami

Brooks on the Rising Orthodox Jewish Community

An excellent column by David Brooks this morning (noted by Ms. Wright below) on the rising strength of New York’s Orthodox Jewish Community.  One highly relevant feature of his piece is the importance of law as a structure that limits choice, and of the beneficent constraining power of law.  You should read the whole piece.  But by far the sharpest line in it is not Brooks’s, but belongs to Chief Rabbi of the British Commonwealth Jonathan Sacks: “The Torah is an anthology of argument with a shared vocabulary of common restraint.”

An analogy is made here (by Brooks and Rabbi Sacks both, it seems) to constitutional law — that is, a conceptual connection between shared cultural norms and norms of constitutional interpretation and adjudication.  Amen.

Posted on by Mark Movsesian

Justice Thomas on Faith and the Court

In the New York Times, Adam Liptak reports on a recent appearance by Justice Clarence Thomas at the National Archives. In an interview conducted there by Yale law professor Akhil Amar, Thomas reflected, among other things, on the religious makeup of the Court and on his own faith. About the former, Thomas downplayed the importance of the fact that, for the first time in history, the Court contains no Protestants. (The current lineup is six Catholics, including Thomas himself, and three Jews). “We’re all from the Ivy League,” he observed. “That seems to be more relevant than what faith we are.” About the latter, he said that he grew up in a religious environment and still believed in God. “And I thank God I believe in God,” he said —  a theologically interesting proposition, itself — “or I would probably be enormously angry right now.”

I always feel a little uncomfortable focusing on the religious identity of the Justices.  It’s naive, I know, to think that Presidents select Justices without regard to such things – for years, there were “Catholic” and “Jewish” seats on the Court – but, in a religiously diverse society, focusing on the Justices’ religion can easily lead to recriminations. (“He’s only ruling that way because he’s Jewish”).  Perhaps that’s why Justice Thomas changed the subject to education. Besides, if the Justices are anything like other Americans, religious identity in itself suggests little about what results they would favor. Religion is an important predictor in American politics, influencing the policies and candidates people support. But it is the degree of religiosity, not the particular religion, that seems to matter. So, the interesting question would be, “How often does a Justice attend religious services?” not “To what religion does the Justice belong?” And that’s assuming that the Justices don’t filter their religious commitments when deciding cases.

To my mind, though, Justice Thomas’s second observation is the really interesting one, at least on a personal level. About what, exactly, is he so bitter that only divine grace can keep him from being “enormously angry?” You’d think that being a Supreme Court Justice would soothe most public annoyances. Liptak reminds readers, by way of explanation, of Thomas’s infamous confirmation hearings, when Thomas had to defend himself against allegations of sexual harassment. But that was more than 20 years ago. Maybe it’s something else the Justice addressed in the interview, the continuing criticisms that he doesn’t care about his African-American identity. Whatever it is, the hurt is apparently very deep.

Posted on by Marc O. DeGirolami

On the Uses of the Epigraph

“Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?”  That is the question Professor Richard Pildes asks over at Balkinization.  The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year — a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision.  In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.

I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as “authority” for a constitutional decision, at least unless the modifier “persuasive” is added.  But even “persuasive authority” is not quite right.  The body of Judge Calabresi’s concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the “authority” for his opinion.  In his post, Prof. Pildes describes the use of the epigraph as providing “normative support” for Judge Calabresi’s views, and this seems closer, though also not exactly right.

I have always thought that epigraphs are not argument.  They are not even suggestions of argument.  Their function is to orient the reader obliquely toward a certain mood or manner of thinking.  In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority.  “Authority” is hardly the point.

All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.