The Fallacy of Voting to Save the Supreme Court

I know of many pro-life voters who detest Donald Trump but plan to vote for him anyway, on the grounds that the Supreme Court is at stake. They argue that Hillary Clinton is guaranteed to nominate pro-abortion justices, whereas Trump... well, might do better.

But as the recent Whole Woman's Health v. Hellerstedt decision shows, the Court already has a pro-abortion majority. (Similarly, Obergefell v. Hodges showed that it has a gay marriage majority.) A long sequence of events would have to transpire to reverse that.

First, your vote for Trump would have to help propel him to the presidency. Opinion polls vary, but no one is claiming he has more than a razor-thin lead, and when you break it out by state - which is how we elect presidents - he's trailing Clinton. Second, Trump would have to nominate a genuinely pro-life justice to fill the seat formerly held by Justice Scalia. Given Trump's waffling on the question of abortion, this is by no means guaranteed. Moreover, there is a long history of Supreme Court justices turning out to be a shade different than was advertised (recall that Kennedy was a Reagan appointee), so definitely no guarantees. Third, such a nominee would need to be confirmed by the Senate, which may well be captured by the Democrats. (In swing states, running against the party of Trump is the best thing that happened to many Democratic candidates.) Fourth, one of the five liberal justices would have to step down or die. The odds of any of them stepping down are extremely slim under a Trump presidency; they'll wait for a Democrat in the White House. So death is the only way they'll be replaced. Then repeat steps two and three. And, at last, you have a five justice pro-life majority.

I don't have a crystal ball, so I can't tell you if any of those things will happen. Some are more probable than others. But getting all six steps to occur is not likely. Let us assume 50-50 odds for each single event. The odds of getting all six is a little less than 1.6%.

A more probable outcome, should Trump be elected, is that he nominates someone whose views on matters like abortion and gay marriage are as moderate / opaque /confused as Trump's own. Such an individual might actually be approved by the Senate. And thus we would end up with five pro-abortionists, a wishy-washy, and three pro-life justices. Is that a sufficient improvement to outweigh everything you despise about Trump?

In all fairness, if Clinton were elected, in conjunction with a Democratic Senate, she could fill Scalia's old seat with a liberal. And one or more of the older pro-abortion justices could retire and safely see their seats backfilled with younger liberals. The current situation could be entrenched for decades. But the more I reflect on this scenario, the more it strikes me as emblematic of politics in general and not some special case. Every election has consequences. And because politics never stops, there is no such thing as a safe margin or done deal. Everything is always at stake. In that sense, this election is no different than any other. Rare is the truly extraordinary "crisis election" or "special circumstances." If you like Donald Trump or his policies, go ahead and vote for him. But if he would have been morally unacceptable to you in 2012 or 2000 or 1984, don't vote for him this year either.

Two Remarks on Obergefell v. Hodges

#1

Justice Scalia, at the very beginning of his dissent in Obergefell v. Hodges, showed that he still is, and most likely will die, a legal positivist. Now, I have some sympathy for Justice Scalia’s position. Positive law is supposed to be about reaching logical conclusions. In any given case, the judge must ascertain what the applicable rule of law is and then apply it to the facts before him. Ideally, he should be able to summarize his ruling in a clear outline, with each conclusion following logically from the rules of law. The judge must also be able to justify the weight he gives to certain facts and his assessment of the various witnesses’ credibility in an intellectually coherent manner. Last Friday’s decision—as Justice Scalia is perfectly correct to point out—failed miserably as jurisprudence from the point of view of positive law; Justice Kennedy’s “rules of law” were, in Justice Scalia’s memorable insult, no more than “fortune cookie aphorisms."

However, Justice Scalia errs in foreswearing all notions of natural law or metaphysics, at the very beginning of his dissent. After all, where do the rules of law, the premises of our legal syllogisms come from? We lawyers are taught always to cite to the relevant authority, but we rarely admit that our citations to authority cannot regress ad infinitum. At some point we must discuss first principles. Justice Scalia’s solution to this conundrum is not the Catholic solution—he does not invoke natural law to supply him the premises for his arguments. Rather, he insisted last Friday, as he has throughout his career, that in a democracy these premises must be supplied by the people, as expressed in their legislation (Constitution and statutes). Vox populi, vox Dei is the supreme rule in Justice Scalia’s jurisprudence.

Justice Scalia’s solution, though, is false; it runs into two problems. First, it denies the fundamental insight of natural law that over and above positive law there is a transcendent justice which positive must respect; a positive law that contradicts this transcendent justice is null and void and cannot bind the individual conscience. Even though most Americans have a very skewed notion of this transcendent justice—and Justice Scalia is right to combat these errors aggressively—these same Americans are nevertheless correct in their intuition that an unjust law is no law at all, and that our nation’s highest court should say so.

Second, it is futile for Justice Scalia to protest against Justice Kennedy’s smuggling of quasi-metaphysical notions of freedom and equality into the Supreme Court’s jurisprudence when the 14th Amendment makes these same notions the very cornerstone of our law. Justice Scalia’s valiant efforts to limit the baleful influence of vague ideas of freedom and equality on America by resort to historical research and originalism have always been bound to fail because freedom and equality have been our dangerous ferment since the days of the Revolution. They have been acting throughout American history, sometimes quickly and sometimes slowly, but always there. Justice Scalia’s historical research ignores this fact.

In short, because of his own philosophical blinders—his legal positivism—and his own ideological commitments—to democracy—Justice Scalia will never actually address first principles, which was what our nation so needed to hear on Friday.

(Ed Peters makes a similar point in his post on Justice Scalia.)

#2

The Court’s decision in Obergefell v. Hodges also makes me ask whether ordinary legal processes are adequate for determining first principles. In fact, this gay “marriage” case illustrates perfectly why the answer to this question is “no.”

A cardinal rule of appellate litigation is that a reviewing judge is not supposed to consider any facts (except the most trivial) that are not contained in the record; likewise, the litigating attorneys may not refer to any facts (except the most trivial) outside the record, except by way of analogy. The record—for all you non-lawyers out there—is the documented proceedings and testimony taken in the trial court. It contains the parties’ pleadings, the sworn testimony recorded by the court reporters, and, in some cases, the physical evidence. Even in our increasingly digital age, all the case records I have ever dealt with in my law practice have been bound collections of paper documents. In other words, if litigating attorneys want the reviewing judges to consider certain facts, it must be introduced into evidence at trial properly and then included in the record. If something is not in the record, it does not exist for the judge and the attorneys.

But, when the question is as complex as the nature of marriage and its incompatibility with homosexuality, a question which could be studied over the course of an entire lifetime, how does a litigating attorney even begin to develop an adequate record and a reviewing judge to read and comprehend it? The issues involved are too complex and the required expertise too variegated for busy attorneys and judges to master these issues within their own lifetimes.

Our legal processes are well designed to deal with discrete incidents, but not with broad social policy or great philosophical issues. Nevertheless, if the law is to have a firm foundation, it must ultimately have recourse to philosophy. But woe to the nation that looks for answers to the most vexing questions of philosophy to Justice Kennedy.

The Dangers of Other-Direction

OR

What Daycare and Prom Have in Common

Some of my co-workers have children in daycare.  At present, our son is not.  There are many sound arguments for placing children in such an arrangement, but I would instead like to address one fallacious argument.  Some people say they want to place their children in daycare to teach them good social skills, or - presented it its more striking opposite form - so that they don't turn out as unsocialized loner weirdos.

Sociability is a good thing so far as it goes, but as David Riesman points out in his 1950 classic The Lonely Crowd, sociability has its limits.  Riesman describes three, or rather, four, types of people.  Tradition-directed people live by the standards and customs of their culture, even if no other members of that group are around, or are even left alive.  Such people are virtually unknown in the modern industrialized experience.  The inner-directed person lives by the standards of a inner gyroscope spun up by his or her parents.  The other-directed person lives in accordance with the opinions of those around him or her.  As Riesman points out, a world of other-directed people can end up all trying to emulate one another, without anyone having a clear sense of purpose.  Hence the title.

I recently spoke with a social worker in the Federal City who said the young people she worked with precisely fit Riesman's description of contemporary other-direction.  They were utterly lacking in the drive and self-discipline which characterize the inner-directed person, instead constantly indulging their various whims.  However, these troubled youths were so other-directed that they could not even decide what it was they wanted, and thus frequently brought trouble on themselves in the course of seeking not their own desires, but the perceived desires of those around them.

Such a situation is not unique to difficult neighborhoods.  It should also be familiar to anyone who has considered the problem of high school proms.  As a student government faculty adviser once explained to me, no one wants to go to prom when no one is going to prom.  But once everyone is going to prom, everyone wants to go.  If one were to graph prom plans on the Y against time on the X, the result would be an inverted L: for a long time no one wants to go, then suddenly the zeitgeist shifts and interest soars.

This isn't really a post about daycare or prom; it's about that sudden shift in public attitudes.  The rapid turnover in fashions of all kinds - sartorial, dietary, technological - exhibits this phenomenon.  So too do American views on same-sex marriage.  As late as 2005, many polls showed that a majority of Americans - perhaps as much as two thirds - opposed same-sex marriage.  By 2012 a majority of Americans supported the recognition of such unions.  The pace of change has caught both supporters and opponents by surprise, prompting analysis among pundits and rapid position changes by politicians.  Let me suggest that this rapid change may be the result of our contemporary other-directed society.  Everyone now supports same-sex marriage because everyone supports same-sex marriage.

Opponents of same-sex marriage may rail against other-direction on this point, but other issues could be raised on which the left opposed the zeitgeist.  Rather than tallying partisan points, let me suggest that Americans of all political stripes should be concerned about this problem.

The answer is not to remove children from daycare or quit holding proms.  Rather, a solution begins first by recognizing the problem and then envisioning a solution.  I mentioned a few paragraphs ago that Riesman described four types of people.  Whereas the tradition-, inner-, and other-directed are all directed by other people, directly or indirectly, he posits a fourth kind who is not: the autonomous person.  Such a person makes decisions for him or herself.  If cultivating such autonomous reason is a difficult task - and surely it is - perhaps it can be tempered with a stern adherence to received values and a regard for traditional ways.  None of these are perfect guides which can guarantee a correct outcome, but at least they avoid the madness of the crowd.  It's something worth attempting.

How I'll Be Voting: The Rick Santorum Edition

A couple weeks ago I wrote a post weighing three presidential candidates - Romney, Gingrich, and Obama - against a series of issues I laid out earlier.  The short version of those ramblings was this: President Obama flubbed all of them.  He supports same-sex marriages in all but name and is beholden to the National Education Association, one of the biggest obstacles to school reforms.  He has shown no interest in overhauling the tax code or passing comprehensive immigration reform.  With regard to the national debt, his latest proposal is to expand spending, but expand taxation more.  That'll eventually get us there, but we need more.

Gingrich and Romney fared only somewhat better than the president.  Both support school choice and Gingrich understands the three-fold requirement for immigration reform.  But both are questionable on marriage - Gingrich' personal life leaves much to be desired in this regard, and Romney has a history of waffling on social issues - and although both gesture in the right direction with regard to the tax code and deficit, both seem more interested in slashing taxes than addressing the issues I am considering.

Meanwhile, events have overtaken my analysis.  With wins in Colorado, Missouri, and Minnesota, Rick Santorum now appears to have edged Gingrich out and may even be passing Romney in polls.  So how does he do?

Debt.  Santorum favors a balanced budget amendment, and is willing to talk about Medicare and Social Security reform.  Some of his particular proposals - such as halving the staff of USAID - I am less excited about, but there is a real commitment here to actually tackle the national debt crisis.

Tax Code.  Santorum explicitly favors simplifying the tax code.

Immigration.  Santorum favors reforming the immigration process, but only after securing the border first.  He is opposed to amnesty for illegal immigrants.  While I understand the opposition to amnesty, I don't see evidence here that he's considered the scale of the problem (10-12 million people) and the fact that some families are of divided nationality.  Likewise, while I have no problem with securing the border first, per se, I worry that subsequent reform might never happen.

Education.  Santorum favors pushing educational regulation toward the local level and increasing school choice.

Marriage.  There is no question that Santorum is a solid supporter of a traditional definition of marriage.

I would be equivocating if I did not say that this is easily the best slate of positions on these issues of any candidate I have yet considered here.  I will, however, make a few caveats.  There are other issues - foreign policy, healthcare, etc. - that I have not considered.  Likewise, there are other candidates I have not mentioned.  And Santorum has other positions I did not weigh.  (Perhaps typical of these is his first policy statement, against illegal pornography.  I quite agree that pornography is a pestilence destroying the soul of our nation; I do wonder, however, if government is the best tool for attacking it, or if there are more pressing matters to which government alone can attend.)  Moreover, a candidate with the right positions does not necessarily have a strong chance of winning a general election or passing his agenda if elected; prudence must dictate how far voters are able to compromise for political expediency before violating their consciences.

My colleague Stephen has made a compelling case that there is little a Catholic - or, indeed other persons of traditional faith - can do in the present political climate.  He argues that we must conduct intellectual and cultural resistance, beginning in our own hearts; we must withdraw from the politics that have already exiled us, while still caring for the society around us.  I find Stephen's comments quite persuasive, but I am certainly also intrigued by Santorum's recent success; does it represent a real breakthrough?

Image via ABC News.

How I'll Be Voting - An Update

In August of last year I sketched out some issues I thought key for this presidential election.  With South Carolina's Republicans voting yesterday, it seems like a good time to take stock.

For the sake of discussion, I'll assume a three way race between President Obama, Mitt Romney and Newt Gingrich.  This ignores the other Republican challengers and third party candidates.  A third party vote can be a powerful message, and may even be necessary in the present climate, but we'll leave that topic for another day.

One more caveat: I've drawn heavily on candidate's own official policy statements.  A fuller consideration would include their campaign statements, policy history, and analysts' predictions of future actions.  One could write a dissertation on many of these questions.  I mean only to start a discussion, not give the final word.

So how do the candidates stack up?

Debt.  Will they balance the budget?  That may require raising taxes, cutting spending, or both.  That may mean reforming the procurement process or passing a balanced budget amendment.  The specifics can vary, but we need to see a plan.

• Romney is calling for a program of "cut, cap, and balance."  He wants to reduce spending, capping government expenditures at 20% of GDP, and then pass a balanced budget amendment.  He acknowledges that entitlement reforms will have to be part of the picture.  He argues that "we have a moral responsibility not to spend more than we take in."  To do so is a cruel burden on our children and grandchildren.  If one wants to be cautious, however, we might note that Romney has criticized the president's stimulus spending as adding to the debt, but - from what I can gather - Romney is more concerned about the spending part of that equation than the debt.  His basic plan is to cut taxes to revitalize the economy, thereby raising revenue.  The Laffer Curve sometimes looks like that, and it might work, but it might not.  I worry that he may not be willing (1) to cut expenditures as deeply as he wants to cut taxes, and (2) to raise taxes to avoid Greek-style debt.
• Gingrich states that balancing the budget is one of his goals and has put forward a white paper on entitlement reform.  The budget is, however, 7th of his 9 economic priorities.  Moreover, he proposes to balance it by "growing the economy" (through tax cuts and deregulation) and "controlling spending".  Newt's first economic priority is to "stop the 2013 tax increases."  While I'm no fan of taxes, this maniacal emphasis on cutting them seems unlikely to lead to a balanced budget.  Yes, economic growth is part of the long-term solution to the debt, and low taxes are part of that equation, but they are not the whole story.  Nevertheless, Newt gets points for his real work during the 1990s to balance the federal budget.  Past performance is no guarantee of the future - balancing the budget in the boom years of the '90s was certainly easier than in today's economic climate - but it counts for something.
• Obama's position page on the economy does not mention the national debt, our credit rating, or the problem of the deficit.  Instead, he discusses jobs, the auto industry, Hispanic families and women.  I don't mean to be cynical, but this is a naked appeal to some pretty specific interest groups, without consideration of the big picture.  Given the way the national debt has ballooned under President Obama, he offers little on this issue.  The one thing that can be said for the president is this: much of the debt that has accumulated during his years in office came from two wars he inherited, one of which he has ended, the other of which he is drawing to a close.  This will lead to substantial savings, though it hardly amounts to a concerted deficit plan. 
• Winner?  I think Romney edges Gingrich out on this one, but all three candidates could focus more clearly on the debt.

Tax Code.  Put simply, ours is too large and too complicated.  It's a drag on the economy, a distortion of market forces, an invitation to corruption, and a revenue sieve.

• Romney advocates tinkering with the tax system, but hardly the overhaul it needs.  This may be politic, but it's not leadership.  His stated long-term goal is to "pursue a fairer, flatter, simpler tax structure," but his articulated policy details all pertain to modest tax cuts, not closing loopholes and shortening the tax code.
• Gingrich advocates an "optional flat tax of 15% that would allow Americans the freedom to choose to file their taxes on a postcard."  This is good.  The problem is that it's optional.  Individuals and companies will still have an incentive to lobby for special exceptions.
• Obama only appears interested in closing loopholes if they're advantageous to Wall Street.  His own campaign website promises special tax incentives for clean energy technologies and small businesses.  I'm not opposed to either, but the president is doing nothing to fundamentally reform the tax code.
• Winner?  A Romney-Gingrich tie.  Both seem to have the right idea, but insufficient plans to execute at this time.

Immigration.  We need to secure our borders, reform the system for legal entry, and address the problem of the large illegal population currently living in the States.

• Romney hardly has an immigration plan.  He vows to "explore with Mexico, in his first 100 days, the need for enhanced military-to-military training cooperation and intelligence sharing to combat drug cartels and criminal gangs. Mitt Romney will complete a border fence protecting our southern frontier from infiltration by illegal immigrants, trans-national criminal networks, and terrorists."  So he's serious about securing the border.  But we need more.  I see little interest in immigration reform, and on the touchy issue of the present illegal population, he has taken a hardline stance that either ignores the size of the problem or implies a police state. 
• Gingrich hits the nail on the head, directly addressing the issue - unlike Romney's comments, buried in his foreign policy positions - and calling for all three elements of a solution.  He might not get his way, or particular elements of his policies might not work, but this is the best I've seen of the mainstream candidates.
• Obama certainly styles himself a friend of the Hispanic community, but his website makes no mention of the immigration issue.  That may be because he's set the record for deportations.  This powerful stick has not been accompanied by the carrot of comprehensive immigration reform or a push therefore.
• Winner?  Gingrich unambiguously comes out ahead.

Education.  We're looking for school choice, open enrollment, more charter schools and vouchers, and a willingness to fight the NEA.

• Romney is a firm supporter of school choice.  Excellent.
• Gingrich also supports school choice (though a few details differ).
• Obama has made education a major element of his campaign.  However, his education policy page primarily trumpets the spending of money.  Considering the NEA's massive contributions to the Democratic Party, don't expect the president to rock the boat.
• Winner?  Another Romney-Gingrich tie.  The biggest unknown here is how far either one could get on actual reform before Washington chokes it off.

Marriage.   Late, and somewhat reluctantly, I have found myself placing this issue in the top tier.  I tire of the culture wars, but I have become ever more convinced of the centrality and importance - not to mention sanctity - of the institution of marriage.  Attempts to foist so-called same-sex marriages on the nation are ultimately a violation of conscience for those who cannot support them.

• Romney's tangled history of positions on abortion call into question his adherence to the moral positions of his Mormon faith.  Nevertheless, the fact that he comes from a church famed for its strong families, and the fact the he remains married to his first wife, are good signs.  However, Romney was once known as a supporter of same-sex marriage.  He now opposes it, and explains that he was "firmly in support" of protecting gays, lesbians, bisexuals, and transgendered persons (GLBT) from discrimination, but he always opposed same-sex marriage.  If that's an accurate representation of his views and policies over the years then I think he's right on target.  But this may simply be waffling.
• Gingrich has a tumultuous personal history of failed marriages.  That's troubling, though (1) I do believe in conversion and (2) nothing says a personally flawed leader cannot produce good policies for the nation, though I would be skeptical of such an outcome.  Nevertheless, he has come out strongly against same-sex marriages.  I do worry, however, that his position on this matter risks alienating moderate voters by sounding hateful; this is a difficult issue and any candidate should tread with care.
• Obama has positioned himself as a champion of the GLBT community.  He has highlighted his opposition to the military's "Don't Ask, Don't Tell" policy, though this is one of the least controversial issues in the field of GLBT rights.  The president has carefully avoided using the M word with regard to same-sex relationships, but he trumpets his support for "lesbian widow Edith Windsor in her suit
  against DOMA [the Defense of Marriage Act]."
• Winner?  Gingrich, by a nose.  His personal life notwithstanding, he's probably the most likely to sign pro-marriage legislation.

 A couple final notes on two important issues that didn't make the short list.  In the realm of foreign policy, I find President Obama to have been fairly impressive.  He brought the hunt for Osama bin Laden to a conclusion, brought the troops home from Iraq, and toppled Libyan dictator Muammar Gaddafi without putting American boots on the ground and while making our European partners take the lead.  That's a fairly impressive record, one I would be surprised if either Republican could surpass.

As I've argued before, the right to life - particularly the life of the unborn - is terribly important in a general sense, but is largely out of the hands of the president.  The one exception is the appointment of Supreme Court justices.  President Obama's appointments have been in favor of abortion; given Romney's checkered history of positions, I worry he might appoint the next David Souter.  Gingrich is the only candidate of the three I feel confident would appoint an anti-abortion justice.

What do you think?  Please, share your thoughts in the comment field!

Today's image of the 2008 Democratic National Convention comes via Reuters.

Nietzsche on Marriage

A friend recently directed my attention to the 20th chapter of Friedrich Nietzsche's Thus Spoke Zarathustra, which pertains to marriage and children. I reproduce it here in its entirety because it is that interesting:

I have a question for thee alone, my brother: like a sounding-lead, cast I this question into thy soul, that I may know its depth.

Thou art young, and desirest child and marriage. But I ask thee: Art thou a man ENTITLED to desire a child?

Art thou the victorious one, the self-conqueror, the ruler of thy passions, the master of thy virtues? Thus do I ask thee.

Or doth the animal speak in thy wish, and necessity? Or isolation? Or discord in thee?

I would have thy victory and freedom long for a child. Living monuments shalt thou build to thy victory and emancipation.

Beyond thyself shalt thou build. But first of all must thou be built thyself, rectangular in body and soul.

Not only onward shalt thou propagate thyself, but upward! For that purpose may the garden of marriage help thee!

A higher body shalt thou create, a first movement, a spontaneously rolling wheel--a creating one shalt thou create.

Marriage: so call I the will of the twain to create the one that is more than those who created it. The reverence for one another, as those exercising such a will, call I marriage.

Let this be the significance and the truth of thy marriage. But that which the many-too-many call marriage, those superfluous ones--ah, what shall I call it?

Ah, the poverty of soul in the twain! Ah, the filth of soul in the twain! Ah, the pitiable self-complacency in the twain!

Marriage they call it all; and they say their marriages are made in heaven.

Well, I do not like it, that heaven of the superfluous! No, I do not like them, those animals tangled in the heavenly toils!

Far from me also be the God who limpeth thither to bless what he hath not matched!

Laugh not at such marriages! What child hath not had reason to weep over its parents?

Worthy did this man seem, and ripe for the meaning of the earth: but when I saw his wife, the earth seemed to me a home for madcaps.

Yea, I would that the earth shook with convulsions when a saint and a goose mate with one another.

This one went forth in quest of truth as a hero, and at last got for himself a small decked-up lie: his marriage he calleth it.

That one was reserved in intercourse and chose choicely. But one time he spoilt his company for all time: his marriage he calleth it.

Another sought a handmaid with the virtues of an angel. But all at once he became the handmaid of a woman, and now would he need also to become an angel.

Careful, have I found all buyers, and all of them have astute eyes. But even the astutest of them buyeth his wife in a sack.

Many short follies--that is called love by you. And your marriage putteth an end to many short follies, with one long stupidity.

Your love to woman, and woman`s love to man--ah, would that it were sympathy for suffering and veiled deities! But generally two animals alight on one another.

But even your best love is only an enraptured simile and a painful ardour. It is a torch to light you to loftier paths.

Beyond yourselves shall ye love some day! Then LEARN first of all to love. And on that account ye had to drink the bitter cup of your love.

Bitterness is in the cup even of the best love: thus doth it cause longing for the Superman; thus doth it cause thirst in thee, the creating one!

Thirst in the creating one, arrow and longing for the Superman: tell me, my brother, is this thy will to marriage?

Holy call I such a will, and such a marriage.

Hat tip to ClassicAuthors.net for posting this and other passages and to Paul Heimann - who is himself getting married today - for recommending it.