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.

I have zero confidence that these issues will be explored thoughtfully in the next few days (and I’m don’t have 100 per cent confidence that I’ve gotten the analysis right, although I’m pretty sure that I’m closer to getting it right than almost everyone who’s going to take part in those discussions). My counsel is, “Don’t go there (even if in principle you could),” but someone will surely go there, and then the discussion is going to be quite terrible.

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