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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts How to Talk About Judges and Their Religion – And Why We Shouldn’t
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Friday, September 25, 2020
How to Talk About Judges and Their Religion – And Why We Shouldn’t
Mark Tushnet
I’m dreading the upcoming public discussion of Judge Coney
Barrett’s religious views – not because, as some will contend, doing so somehow
is akin to imposing a constitutionally questionable religious test for office,
but because the public discussion is inevitably going to be dispiritingly
crude. Getting the ideas about the relation between religious views and a
judge’s decisions straight is quite difficult; the issues are subtle rather
than simple. (For example, it’s completely irrelevant that a devout Catholic
takes the teachings of her church on religious matters as authoritative
– of course she does, but the issue is how, if at all, religious teachings bear
on legal matters.) Taking all that into account, I think it would be
best to avoid inquiry into the judge’s religious views even though, if done
carefully, it probably should be permissible. It’s easy to make good-faith mistakes, sometimes small,
sometimes large as you try to figure the issues out. The mistakes can be
substantive or what I call “tonal,” the latter occurring when you
(inadvertently, one hopes) use words or phrases that trigger misunderstandings
that block your ability to engage in productive discussions of the issues.
(Having made at least one major tonal mistake in my own work, I hope I have a
keen appreciation of this problem.) With that as background, on to the discussion. Two framing
assumptions: (1) Most of the discussion should be about religious views
generically, and the way to test what you really think is to ask (in the formulations
I’ll use) whether you have the same reaction to a judge who relies (in whatever
way – that’s the really tricky question) on Catholic teachings as you would to
a judge who says that she is guided by the principle of tikkun olam
(usually translated as “repairing the world”). (2) I confine my discussion to judges. The issues in
connection with legislators are different, mostly because we ordinarily think
that legislators have a significantly wider range of discretion than judges in
what they do. Specifically, legislators aren’t required to limit their choices
to options made available by a limited set of relevant (legal) materials
(except that their oaths tell them to limit their choices to things within the
range of constitutionality). Judges, in contrast, are supposed to work with a
limited set of legally relevant materials. (For what it’s worth, my view is
that it’s obvious that legislators can rely on their religious views when they
choose among constitutionally permissible options. And, it turns out, that’s
pretty much my view about judges – but all the interesting work is done in
figuring out what the range of options made available by the legally relevant
materials is). So: In dealing with cases judges begin with what they take
to be the relevant legal materials. What those materials are depends upon both
the case at hand and the judge’s general views about legal interpretation. For
ease of exposition, I’ll assume that we’re dealing with a judge who takes a
textualist/originalist approach to statutory and constitutional interpretation,
but what I have to say applies no matter what the judge’s interpretive approach
is, and I’ll occasionally mention how the argument works for non-originalist
judges. The judge works with the materials she regards as legally
relevant. Sometimes she’ll conclude that those materials clearly dictate a
result. When that occurs the judge’s religious (or political, or moral, or … )
views don’t come into play: The law, as the judge sees it, determines the
result. Sometimes, though, the legally relevant materials “run out,”
in the sense that taken on their own they don’t compel a conclusion. How often
that happens is an important question, and I’ll come back to it (indirectly).
When the legally relevant materials run out, on what basis can the judge make
her decision? Again within the originalist framework, for example, suppose the
judge concludes that the text and original understandings don’t compel a
result; the judge ends up thinking that the problem lies in which originalists
have come to think of as the zone of constitutional construction. In that zone
the judge has to interpret prior practices, legislative, executive, and
judicial, to figure out what the Constitution means for the problem at hand.
And the key about that zone is that there’s no canonical text or
text-equivalent to work with. If the prior practices are open to alternative
interpretations – as they have quite widely proven to be – what’s the judge to
do? When the relevant legal materials run out, the standard view
is, the judge has discretion. She can exercise that discretion by consulting
her broad political preferences (conservative or progressive), her views about
good public policy (the standard 1950s legal process approach), her views about
the good (a Dworkinian approach), or her religious views. So, she can ask
herself, “What resolution here would result in repairing the world?,” or “What
result here is most consistent with my church’s teachings?” If all that’s right, then we can fairly ask her (beforehand)
about the views she’ll rely on when the legally relevant materials run out. If
her answer is, “My faith tradition,” then we can fairly ask her to explain, at
least in general terms, what that tradition has to say about the kinds of
issues that she’s going to confront – again, in cases where the legally
relevant materials run out. I think it’s clearly proper to ask those questions just as
it would be proper to ask someone who said, “I’m going to consult my sense of
good public policy,” what in general terms are your views about good
public policy. Unfortunately, in the real world these questions aren’t
going to yield much information that we wouldn’t already know without asking
them, at least for a Supreme Court nominee. The first move is to deny that the
legally relevant materials run out in enough cases for us to care about what
the judge does when she has discretion. (As we’ll see the case might be
different for a trial court nominee.) We might be able to come up with
questions where it’s clear that the judge will have discretion in the relevant
sense: When you review a case to determine whether error was clear enough to
warrant reversal, what would you take into account? But then the second move: “I can’t tell you the answer
without having an actual case in front of me, because without such a case I
can’t know whether the legally relevant materials will indeed run out.” I
personally think that these two moves shouldn’t be satisfying because a nominee
of a reasonable degree of legal sophistication shouldn’t think that cases where
the legal materials run out are rare. But, in the context of a nomination
hearing, if they are offered there’s no real chance to explore the nominee’s
sophistication (in that sense). And finally, I think a nominee could – and should – offer a quite general account of her religious views: “Here’s what I understand by tikkun olam,” or “As I understand them, the teachings of my faith tradition are
that capital punishment in the United States today is at odds with that
tradition, as is the practice of abortion. And here’s what I understand that
tradition to say about the role obligations of a U.S. judge today when dealing
with these and like issues.” But, as I’ve indicated, such answers are unlikely
to tell us much that we wouldn’t already know. Still, I do think it important
to say explicitly that asking a nominee whether she would consult her religious
views when the legally relevant materials run out is a constitutionally proper
inquiry, not the imposition of something like a religious test for office. Finally, there’s one issue specific to Catholic public
officials, including judges. Judge Coney Barrett’s thoughtful article
with now-President John Garvey on the duties of Catholic judges in capital
cases lays out the framework. With respect to capital punishment in the United
States today and abortion, the Catholic official has to ensure that she not
formally cooperate with evil and that she not materially cooperate with evil if
doing so would cause scandal, defined (roughly) as “leading others into sin
because they observe a faithful Catholic’s actions and conclude that those
actions aren’t sinful.” On capital punishment, Coney Barrett and Garvey lay out a
spectrum of actions: actually carrying out an execution (almost certainly
prohibited as formal cooperation), imposing a death sentence authorized but not
required by law (a discretionary act) (maybe prohibited as formal cooperation,
and if only material cooperation, maybe prohibited by the “scandal” principle),
sitting as an appellate judge in a case challenging a death sentence, or –
shortening the list – hearing a habeas corpus challenge to a death sentence.
Once you get beyond formal cooperation, the analysis is complex, but at some
point – certainly at the appellate level – the only issue is scandal. (And the
relevant teachings on capital punishment – that it is impermissible in the
circumstances of the contemporary United States and similar societies – are such
that the principle almost certainly doesn’t kick in with much force.) Further,
the proper action to take when faced with a religiously dictated prohibition is
recusal, not ruling on the merits. Applying this framework to abortion is of course complicated
– on the assumption that we’re working within the zone where the available
legal materials don’t compel a decision one way or the other (although the
analysis so far and that to come suggests that if the legal materials compel a
decision upholding the right to choose with respect to abortion, the judge shouldn’t
“follow the law” and should recuse, resign, or openly defy the law by denying
the right to choose.) Of course the judge couldn’t order that an abortion be
performed, and I’m pretty sure that the “material cooperation/scandal”
combination would rule out affirming a decision by some administrator to order
an abortion. The hard question involves a decision, whether or not
compelled by the existing legal materials, that has the effect of allowing
abortions to occur. (Not entirely incidentally, this question can arise in two
contexts: a challenge to the constitutionality of a law limiting the
availability of abortions, and a challenge to the constitutionality of a law permitting
abortions [either as a denial of a right to life or as a violation of equal
protection for the not-yet-born compared to the already-born].) Of course, a
judge might think that such a decision might never present itself to her because,
on the judge’s view of the relevant legal materials – say, a particular view of
how the originalist materials bear on the question coupled with a view that stare
decisis is such a weak constraint on the judge that refusing to follow
existing law isn’t really discretionary – the answer isn’t underdetermined by
the relevant legal materials. But, as it turns out, within the framework that Coney
Barrett and Garvey developed, the judge’s point of view might not matter. These
are cases of material cooperation, and the principle of scandal comes into
play. And, because the ban on abortions (unlike that on capital punishment) is
absolute, the risk of scandal is high (in my view and hinted at by Coney
Barrett and Garvey). And, what’s worse, it might be that recusal wouldn’t be an
appropriate response (given the absolute nature of the prohibition) – though I
stress that Coney Barret and Garvey don’t discuss that in connection with
abortion. If that’s right, the Catholic judge must rule against the
right to choose no matter what the legal materials say (and, because scandal
arises when observers draw inferences from the believer’s behavior, the
judge’s point of view wouldn’t matter). In that sense her legal decision
is dictated by her religious views because her religious views tell her that
neither the legal materials nor her internal state of mind is relevant. But,
once again, the argument supporting inquiry into the judge’s religious view is
sufficiently subtle that it would be crazy to try to conduct a public inquiry
that respected this line of thinking.
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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |