Angelica Tom:

Well, thank you everyone for being here at the Catholic Information Center. We are delighted to present this program to you with our co-sponsor, the Center for the Constitution and Catholic Intellectual Tradition, which is part of the Catholic University School of Law. Mercy, Retribution and the Sentencing Judge will be discussed by Judge Richard J. Sullivan and Judge Stephanos Bibas, moderated by William Kamin, who’s of CIT as well as he’s a visiting professor right now at the Notre Dame Law School for the school year, but he remains also an associate professor at the Catholic University of America Columbus School. He joined in 2023. He teaches and writes in the areas of habeas corpus, federal courts, civil procedure and legal history. His scholarship on habeas corpus has been published or is forthcoming in the Stanford Law Review and the UC Davis Law Review.

At Catholic Law, he has received awards for both his teaching and his research. Prior to entering academia, Kamin served as a law clerk to Judge Richard Sullivan, this one, the US Court of Appeals in the Second Circuit and Judge Diarmuid F. O’Scannlain of the US Court Appeals for the Ninth Circuit. He was at JD from Yale Law School and a BA summa cum laude and Phi Beta Kappa from Amherst College. He’s not too shabby. He does represent the Center for the Constitution and the Catholic Intellectual Tradition, which promotes scholarship that explores the relevance of the Catholic intellectual tradition for American constitutionalism. Anyway. Thank you all for being here. At the conclusion of this event, please help yourself again to the coffee and to the donuts, but I’m going to step away and let Will take over. Thank you.

William M. M. Kamin:

Thank you, Angelica, and thank you Father Charles and everyone here at CIC for hosting us and thank you all for being here. So it’s great to have two judges who have thought really deeply about the issues of mercy, just retribution and criminal sentencing, which is what we’ll be chatting about today. US Attorney’s Office for the Southern District of New York where he overlapped for a couple years with Judge Sullivan. He then entered legal academia and taught at the law schools at Penn, Chicago and Iowa prior to being appointed to the bench. And he is also an ordained deacon in the Greek Orthodox Church.

Judge Richard Sullivan has been on the bench since 2007 when he was appointed to the US District Court for the Southern district in New York. Since 2018, he’s been on the Second Circuit. He’s a graduate of the College of William & Mary in Yale Law School. He also spent a little over a decade in the US Attorney’s Office prosecuting international narcotics trafficking organizations among others. He currently teaches at Yale Law School and Columbia Law School as well. So thank you to both of our panelists for being here. So I think we’ll start with Judge Bibas, sort of giving the affirmative for mercy… Well, I shouldn’t box anyone into a corner, but we’ll start with Judge Bibas and then hear from Judge Sullivan and then have some moderated Q&A for me and then we’ll open it up to you all.

Judge Stephanos Bibas:

All right, thank you for having us. Thank you for the kind introductions. It’s a particular pleasure to be here on a panel with my former boss and supervisor from the US Attorney’s Office. Always a little daunting. He’s a very formidable lawyer as well as a great guy and a serious Catholic, and I’m not sure I’m either, certainly not a… But I want to start with a little intellectual history just to kind of understand how far our conception of mercy and disdain from mercy are from where we started. And Orthodox Christians, we like history and we like going back in history. So in modern discourse, mercy is like a political football. It’s just kind of being a softy, lenient, criminal sentences, and we have the language of rights, not mercy. We have social programs rather than the Christian charity. We have general do-good or benevolence and we treat it all as a zero-sum game, but this is not where mercy starts and it’s not authentic to the roots of mercy.

Let’s rewind. 2500 years ago. Aristotle, always a good place to start. The word epieikeia is about tailoring justice to the needs of the particular case, and there’s not a priori rule of where that winds up, but there’s an understanding that we need justice and we need rules, but that has to be flexible enough to take into account the particularities of the individual’s situation. There’s a need for prudence and situation sense and how to apply that. When we get to Christianity, the Eastern Orthodox Church, which I belong to, our refrain in our liturgies is Kyrie eleison, Lord have mercy. Now, that is because all of us sin and fall short of the glory of God. We all need mercy, but it’s an understanding. It’s not a particular dispensation for one wrongdoer. It’s God’s active love for all of us. Incarnation, crucifixion, resurrection, conquering death, opening the way to eternal life.

So the father in the parable, The Prodigal Son. We’re all the Prodigal Sons. We all need God’s mercy and paternal love, and that doesn’t always mean getting rid of deserved punishment, but it means understanding that we might all deserve more, but there’s still some judgment in terms of how much we actually get. Something happens and as so often we Orthodox diagnose it is happening in the high Middle Ages. The Western intellectual tradition put justice on a collision course with mercy, and for us, we think if you go back to Anselm, who really develops the idea of substitutionary atonement, he understands Christ’s death on the cross of satisfaction demanded by God’s justice to atone for mankind’s sin.

But then there’s a further intellectual development in the Enlightenment where that’s not just a theological concept. It then gets imported into a secularized understanding of justice for crimes, collapsing the distinction between God’s punishment and man’s punishment. And then when you think about the Enlightenment thinkers who are stressing political equality and a much more philosophically systematic, a rule-bound equality, impartiality, universality, you get Grotius, get Hobbes, you get Locke, they speak of justice in terms of rights and then it doesn’t seem to leave room for mercy. It seems like a relic of absolute monarchy, just kind of throwing out candy to the people, but condescending to inferior smacking of arbitrariness, right? You get mercy in terms of it depends on whether it happens to be the day a new monarch is seated, then maybe you get mercy. But it’s just a sign of his power. No longer is care for the poor defined in terms of Christian mercy, it’s viewed as just justice for the poor.

And so oddly enough, by the time you get to the modern era, the 18th century. You have two main schools of thought about criminal punishment, but they both converge in the same place. So first there’s the Utilitarians, David Hume, Cesare di Beccaria, Jeremy Bentham. They want rules to deter crime, and so mercy is a deviation from rules. It’s unequal, it’s arbitrary. It sacrifices deterrence and incapacitation. Bentham doesn’t trust judicial discretion. He puts his faith in legislative convocation. By the way, he doesn’t like private charity. He thinks the government’s going to be better because the state knows better than encouraging indolence person to person. There’s none of the milk of human kindness in Jeremy Bentham.

Now, on the other side we have Immanuel Kant. Now he’s a Christian, but he’s a particular kind of Christian. He’s Bentham’s opposite in that he embraces retribution, but he embraces a very particular rule-bound kind of retribution, a categorical imperative. We must punish without pity. Kant’s stern, positive retributivism, not only we are authorized to punish, but we must punish up to the limit is driven not only by duty, but it’s also driven by the need to treat all persons equally and impartially, all right? So we get from the American colonies through the 18th century, their punishment approach is still fundamentally a Christian approach. A lot of the colonies were founded religiously, and they had an understanding, there but for the grace of God go I. and maybe someone took his lumps in the public square, but it was temporary and then there was forgiveness and reintegration.

Now, what happens in the 19th century when plea bargaining supplants trials and when the focus becomes on crime control in large anonymous cities is that you get this suspicion, a suspicion of individualized justice, suspicion of mercy. For a long time there’d been clemency by the king, later by governors and judges, et cetera. But we get to a rule-bound system with some punishments and increasingly through the 20th century, mandatory minimum punishments in some areas, and juries being told they have to where the discretion left in the system is often low visibility and hidden through plea bargaining in the hands of prosecutors without nearly as much of a check as you would’ve had in earlier times where there’s an interplay of the judge and the prosecutor and the jury.

Now, I’m not one here to say that I think softer is better. I think retribution is important and I think there’s a reason for that intuition we have, but I do think that when we conceive of justice exclusively in terms of rules, first of all we remove it from public view. Discretions like a balloon. You squeeze it in one place, it goes somewhere else. More of it winds up in the hands of low visibility, plea bargaining decisions. We have few jury trials and they’re not morality plays very often. And I think there is a value to having sets in guidelines. I think there is a value to having presumptive rules.

At the same time, those are ex ante values. You want some deterrence, but you also want some ex post flexibility. How much was the victim injured? How much has the offender, the wrongdoer apologized? How much is the wrongdoer showing a sign of turning over a new leaf? Maybe after five years in prison how much has the wrongdoer actually changed? This is part of a dynamic process historically, but I think that in an understandable reaction against arbitrariness and against maybe excessive leniency at some times we move towards something that at least nominally becomes a particular rule system.

The final thing I want to say is I don’t think this is exclusively the province of the judge, certainly not the individual sentencing judge. I think it’s a good thing to have appellate review. I think you want to have justifications that you can articulate, that can survive appellate review, et cetera. But I think sometimes, okay, there’s a heartland of cases and then there are cases that deserve something heavier or something lighter, and those can be articulated. I think there could be mercy by prosecutors though it’s a good thing to have some understanding of when some review, at least within prosecutors offices. I think there’s an admirable tradition of executive clemency up until about half a century ago. A lot of which got squeezed out when it suddenly became a political football, and I think it would be good to revive that maybe again, more review-based, et cetera, public discussion.

I’ve not sat in nearly as many sentencing as my friend Judge Sullivan has, but I have sat over some, and it’s a very powerful thing if you don’t just talk in terms of guidelines and points and numbers, if you talk to the person, the wrongdoer and the victim and the wrongdoer’s family in terms of how wrongful the act was, but also what signs of hope you have and what the prospects are for reform, and it’s a dialogue, a very cathartic dialogue for many people. Sometimes people will be insincere, sometimes that one moment won’t be followed up by change. But I think it’s an important thing for the wrongdoer and for the victim and the public to see that there’s real ongoing moral evaluation happening and that the system hasn’t squeezed it all out. So yes, we need justice. Yes, we need deterrence and capacitation. No judges can’t give away the store. But I think within those appropriate bounds, the considerations of mercy, including as tailored justice, as well as understanding the dynamic aspects of how wrongdoers and victims change are worth preserving in the criminal justice system.

William M. M. Kamin:

Thank you, Judge.

Judge Richard J. Sullivan:

I can clap for that. So my friend Judge Babis is a scholar. I was a trial lawyer and a trial judge, and so I’m not writing for scholars typically, I’m generally presenting to juries. So I’ve got pictures. So bear with me. I always worry that sometimes this might seem like showing vacation slides, but I do think it can be a helpful way to think about stuff. First of all, I want to thank the folks at Catholic Law School and here at the CIC. This is a great opportunity for us to come together and speak and to share ideas on important subjects, and so this is important. Now, I think a lot of people may have thought this was going to be a steel cage match between Babis and me on mercy, and that’s not quite right. Actually, this is a conversation among old friends and I mean, old friends begin with the Professor Kamin. Professor Kamin was my law clerk. In fact, he thought we had a policy in chambers of no facial hair. Do you remember that? He thought it was like the [inaudible 00:15:03].

But in any event, I can say generally my criteria for hiring clerks is I look for people smarter than me, which is probably hard for Judge Babis, but for me, that’s not such a litig, but in Professor Kamin’s case, I don’t know of a smarter, more thoughtful law clerk I’ve ever had, and I think he has brought that to the academy and then also as a wonderful teacher. So I’m delighted to be reunited with him today, even if it’s just for a day. With respect with Judge Babis, who was a professor too when he… He got tenure already, by the way. We go way back. I’m in the middle. I haven’t changed much probably, but Babis has changed a little. This is him before he stopped shaving, maybe before he started shaving, but that was quite a class.

I will tell you this was general crime. This is a group of people who are pretty new, and so I was a little less new, but I was the chief. But that class had a number of people who became judges, including Judge Babis on the Third Circuit; Cheryl Krauss, his colleague on the Third Circuit; Mike Scudder, a judge on the Seventh Circuit; Ronnie Abrams, a judge on the Southern District of New York in the trial court; Diane Gujarati, a judge on the Eastern District of New York, Brooklyn on the trial court, and then I was on both the trial court and now on the circuit. So it’s quite a showing of judges. So who knew it was such a judicial training ground?

But I will say Professor Babis, before he hit the bench, wrote very, I think, thoughtful articles and books on the subject of the criminal justice system. I think a lot of this talk today comes from an article he wrote a book review he did in First Things, reviewing a book that was talking about the decline of mercy in public life, and from that he has, I think, focused more specifically on the criminal justice system. This is a talk we’ve had before, it’s a conversation I expect we’ll continue to have, and as I said, I think this a healthy thing for us to do.

So one of the things Judge Babis talked about in his book was the fact that our criminal justice system today is sort of an amoral crime control machine, and I will say, I’m not sure I’m convinced of that. It does seem to me that it’s a very moral system actually. I think the judges are primarily focused on the moral culpability of a defendant. That’s among other things, but that is a very central focus. Just what is the moral culpability for this particular crime, this particular defendant, and that’s what judges do focus on. So I don’t think it is mechanistic. I also think there is a tendency to romanticize colonial justice.

I’m a bit of an expert on this subject because I went to the College of William & Mary, which is in Williamsburg, and so somebody has described Williamsburg as the thinking man’s Disney World, which I’m not sure if that’s a good thing or not, but every trip to Williamsburg, Colonial Williamsburg means a shop to the blacksmith to get yourself a horseshoe and a trip to the stocks to get a funny picture of you and the missus sitting there like you’ve just been punished for some misdemeanor or other.

In reality, I’m not sure that those were such petty minor things, and these were not just indignities. I mean, these were painful punishments for misdemeanors and they weren’t the only ones. I mean, there were other types of misdemeanors that looked kind of cruel in retrospect. And these are misdemeanors. I mean, the felonies tended to be met with a different kind of punishment and not a lot of room for reconciliation and healing in most of those. It was generally felonies were capital cases. And so I’m not sure that colonial times were the golden age of mercy. A short word.

Now I think we’re lawyers, we are judges, I think we need to define terms. That’s what we do. So what is mercy exactly? It’s not just kindness, it’s not just being nice. It is something else. So it’s certainly referenced a lot in Scripture. It shows up in philosophy as Judge Babis was discussing, poetry for sure, and another unlikely source, and this I’ve only learned recently because I’m from New York, is Country music. A lot of talk about mercy in Country music. But so what is mercy? It’s in the Bible, 300-plus times, and that’s the King James version. I’ll give a plug to the Catholic version. It’s about 290 times in the Old Testament and about 45 in the New Testament. But the most hit quote on mercy is Shakespeare. It’s from the Merchant of Venice, but none of these define it. None of these define the term.

And so if you’re looking to define what mercy is, I think a good place to start is the Catechism of the Catholic Church, which describes as the loving, kindness, compassion, or forbearance shown to one who offends. And I think forbearance is a key phrase. Textualists love dictionaries, and so that’s kind of what the dictionaries say as well. There is an element of compassion, but forbearance is there, and I think it’s important to remember the difference between compassion and mercy. Compassion means literally suffering with. Mary at the foot of the cross as Jesus is being crucified is showing compassion. Mercy is acting, motivated by compassion, but it’s acting to alleviate the suffering, and so that’s really what we should be focused on with mercy.

So I think the best example of mercy, or a good example of mercy is from Les Misérables. There’s the bishop, Bishop Myriel, who’s a very saintly guy, and Jean Valjean has been released from prison. He’s bitter about it. He’s wearing effectively scarlet leather that says he is a prisoner. No place will house him, no place will hire him. He is basically up against it, and the bishop sees him, welcomes him to his home, gives him a meal, brings out the fine china, which is the only thing he’s got left, gold plates, because he’s otherwise given everything to the poor. Very saintly guy. Says, “Stay the night,” and John Valjean rewards that by stealing it all in the middle of the night, leaving, and he gets stopped by the cops who say, “Where did you get all this gold stuff?” He says, “The bishop gave it to me.” So they go back to the bishop’s house and the cops skeptically say, “Did you give him this stuff?” And the bishop says, “Yeah, I did. And in your haste, you forgot the candlesticks. Take these too.”

That’s mercy. That is the bishop who had authority, who had the ability to say, “Yeah, that’s my stuff. And he stole it and I’m pressing charges.” He didn’t. He decided to forbear. Now, we’re talking about official mercy here. We’re not talking about personal mercy, and so the issue for us, I think, really is what is the role of mercy for the cops, for the police officers, for the judge, for the jailer? Do they have the authority to exercise mercy in their roles? Can they say, “You know what? I know you stole this stuff, but just promise not to do it again.”? Can the judge say, “Yeah, I know the sentence for this is equivalent of three strikes, you’re out.”?

John Valjean was looking at a life sentence because of this theft. Could the judge have just said, “Yeah, well, I’m not going to do it this time, just don’t do it again,” or could the jailer say, “Okay, I’ll leave it open and you can walk away.”? And that really is I think the focus of today. If you look to Blackstone, Blackstone is the dominant thinker in terms of law at the time of the framing and this declaration, he recognizes that mercy, which he equates with pardon, they’re really synonymous as far as he’s concerned, rests with the king. And in fact, Blackstone thinks this does not rest with judges. You don’t want judges messing with pardon because it will confuse everybody. People won’t know whether this person was found not guilty or innocent of an offense or just pardoned because the judge is wearing two hats, and so that was very definitely the view of Blackstone and it makes its way into our constitution.

So the pardon power is in Article II, and it is reserved for the President, and that is really the only… Mercy doesn’t show up in the Constitution, but pardon does. Now mercy does show up in the convention notes and it’s in a discussion of the pardon power, and what their debate in the convention is, we don’t think Congress should have this power, we think the executive, the President should have this power. No real discussion of judges having it. Hamilton in Federalist 74 is saying the same thing, this is a power of the President and it is to be exclusively reserved for him, not for judges.

I mean, let’s remember that judges get their authority from Congress, not the Supreme Court. The Constitution says the Supreme Court shall exist, but the lower courts, the inferior courts, that’s the ones we’re on, inferior courts, we are creatures of Congress, and Congress basically sets us up. They decide not only our existence, our jurisdiction, this by the way is James Duane, the first judge ever, a New Yorker because the capital was New York, and so judges derive existence, jurisdiction, and authority from Congress. And so ultimately then judges have to ask, “Where do I get this power? Is mercy one of the powers the authority granted to me by Congress?” And I think that’s a fair question.

We all took an oath. That’s me, that’s him. We took an oath to basically support and defend the Constitution, and that’s a oath. So help me God, that we will exercise the powers given to us and not basically take on to ourselves powers not given to us. And so that’s a pretty serious thing taking oaths, at least to some people. And so I think it’s worth remembering that in sentencing, this is not a metaphysical authority that comes with a robe. This is authority that is identified by Congress. It’s in a statute. We are told what we may and must consider in imposing a sentence and we must impose a sentence that is sufficient but not greater than necessary to comply with the purposes of sentencing. And these are the purposes of sentencing. They’re not that mysterious. But to reflect the seriousness of the offense, promote respect for the law, provide a just punishment for the offense. That’s a retributivist manifesto basically.

And then it also includes affording adequate deterrence for criminal conduct, to protect the public from further crimes of the defendant, that’s incapacitation. These are your utilitarian goals by and large. Provide the defendant with needed educational and vocational training. This is rehabilitation. These are the objectives of sentencing in the United States according to Congress, and judges have to apply, they have to basically fashion a sentence built on those things. They have to look to the nature and circumstances of the offense and the history and characteristics of the defendants. That’s where you’re looking. It’s got to be tailored to this person. I agree with Judge Bibas. It’s got to be tailored, but it is in light of the purposes of sentencing designed and articulated by Congress.

And then judges ought to have to consider what Congress has said. I mean, what’s the maximum sentence imposed by Congress? Sometimes it’s zero to 10, zero to 20, zero to five. Sometimes it’s 10. There’s a mandatory minimum sentence or a mandatory consecutive sentence, and judges have to consider those things. A judge can’t say, “Well, in a mandatory minimum according to Congress is 10, but I think five will do it.” I don’t think any judge would say you can do that. Judge also has to consider the need to avoid unwarranted disparities. This is something that judges are tasked with doing. This is not optional. This is a requirement to consider this. And then finally, judges have to think about victims, making sure that victims are wholer.

So these are things that judges have to do. Now, maybe in the area of compassionate release, this is post-sentencing, Congress has amended a statute that allows judges to take a second look, but even those are very constrained. They’re only in certain circumstances and judges still have to apply those purposes of sentencing, and mercy is not among them. And I don’t think it’s an accident, and I don’t think it’s really appropriate to tease out of that language a mercy component. I just don’t think it’s there. In the First Things book review, Judge Bibas basically as he did today, talks about these enlightenment notions that restrain judges, that limit discretion, that are I think he views rigid and mechanistic. We could quibble over that, but I would say remember that the Declaration and the Constitution and the Bill of Rights, these are enlightenment documents. Yeah, that’s what they are. They don’t purport to be anything different.

It seems to me they work pretty well. It seems to me that their preoccupation with authority is I think over the last 200 years has proven to be pretty wise, and I do think that at the end of the day, this system has worked better than the Papal States ever did, candidly, and certainly better than classical Athens did. And so I don’t think we should throw this out, we should recognize that this is really part of a debate, I think, on the one hand that Hadley Arkes… Do you guys all know Hadley Arkes? He’s spoken here before. He’s written a book about natural law, many books about natural law. Will used to work with him and studied under him. But he and Joel Alicea have had a debate really about whether or not judges get to exercise natural law, whether natural law is part of the jurisdiction and authority of federal judges, and it’s an interesting debate.

Alicea would say no, that basically an originalist concept of judging does not allow judges to do this, that natural law is not within the jurisdiction of federal judges. I think that’s a debate worth always considering. But the reality is today, this is a state courthouse in New York, this is the Law and Order courthouse if you watch Law and Order, law and order is like the Weather Channel, and is on 24/7. You can always catch an episode. But this is the courthouse there, and that’s the quote over it, and it’s from Washington. The true administration of justice is the firmest pillar of good government. And this is a focus on justice. And this ultimately I think is what judges are tasked with doing. It’s from a letter to Edmund Randolph. They’re both William & Mary alums, so go Tribe.

But I think the question then is, if not mercy, then what? And I don’t think Judge Babis and I disagree that much in practice ultimately. This is Avery Dulles, Cardinal Avery Dulles, and he wrote a piece on capital punishment that has stuck with me. It’s probably 25, 30 years old at this point. But he talks about the purposes of punishment and they really line up pretty closely with 3553(a) of Title 18. He talks about retribution, which is not vindictive. He made that point very clearly. Retribution is about the restoring the right order of things. It’s not to be vindictive or cruel. And he talks about the prospects of sentencing or engaging in the criminal justice process with love, and his view is that you can do that. In fact, you must do that. And I think he’s right about that. And I don’t think a judge, although not authorized to exercise mercy, can still exercise important qualities, although I think are similar to the ones that Judge Babis is talking about.

Respect. Have to treat a defendant always with respect. This is a human being. This is a person made in the image of God. With kindness. I mean, this is the worst day of this person’s life. If he needs a glass of water, be mindful of that. If he needs a tissue, be mindful of that. Love. To recognize that this person matters not just to their family, they matter in the grand scheme of things. And compassion, which is to suffer with this person. Humility. I was up at Yale last week and Judge Babis was in town that week and the poster showed he was going to be talking about humility in judging, and I think it’s important for judges to remember they don’t know everything. They can’t purport to know everything. They don’t impose a judgment the way God will, that you can’t possibly know your defendant that well.

So most judges, thoughtful judges, have the humility to know that they have imperfect information, they’re doing the best they can. And then ultimately prayer. I will tell you I don’t sentence much anymore, but when I impose sentences, I did so with a prayer. I prayed that I would have the wisdom to impose a just sentence. I prayed that I would have the words to articulate the reasons for that sentence, so it would be understandable to this defendant and to his family and to others who might be there just because they popped in. I prayed for strength for this defendant. This might be the worst day of his life. I prayed that he would’ve the strength to endure it and the strength for what was coming because what was coming was going to be hard, and the same for his family. And it prayed for hope and courage for the family members who will also be victims of this crime.

So at the end of the day, I think Judge Bibas and I are not that far apart, but I think it is important to recognize that mercy shouldn’t be misunderstood and misconstrued, and I think Judge Kamin I know is now going to lead us in a feisty debate and discussion, but it’s important to think about these things because whether you’re a judge or a prosecutor or a criminal defense lawyer, whether you’re not a lawyer at all, the criminal justice system is yours, it is ours. You may be a juror, you will be a citizen. And these are important issues that have to be considered by citizens and we’ll continue. So thanks.

Judge Stephanos Bibas:

All right. Judge Sullivan is characteristically thoughtful, articulate, witty. I certainly can’t keep up with his humor. I want to make a few observations. One of them is I think lawyers… Starting with dictionaries. I think it’s important that when he went to the Catechism of the Catholic Church and beyond, mercy is kindness or compassion or forbearance. Now, it’s certainly true that forbearance is the kind of mercy we typically think about, but I think that some of the things that Judge Sullivan was talking about at the end that he did whenever he sentenced someone are themselves a form of mercy, and let’s not forget that. Just because you pass by a beggar and decide you’re not going to give some money to the beggar, doesn’t mean you can’t show mercy by treating the person who’s a human, saying sorry, and maybe saying a prayer for the beggar. There are different kinds of mercy that we show in different situations and prudentially might be appropriate. So that’s the first thing. I think definitionally my historical service suggests we may have defined this too narrowly.

Secondly, I want to note that most criminal cases are tried in states. They are not bound by the federal statutes. Many states have broader, more flexible systems. But let’s assume we’re in the state system, all right? Judge Sullivan was a prosecutor, indeed my supervisor in the general crimes unit, and I recall that we would routinely entertain, even though someone could be charged with a felony and we thought we had the proof to convict them of the felony, we would routinely consider downgrading that felony to a misdemeanor or dropping or deferring prosecution entirely, and this was true of more serious crimes also where lawyers would come in and make a pitch and say, “Okay, you might have some issues proving it, but even if you could prove it, doesn’t this really deserve to be a civil matter or an administrative matter or couldn’t you take a plea to a misdemeanor?” And I never heard my friend Judge Sullivan object that that was improper. That was part of the role of prosecutors in what can fairly be understood to be mercy.

Now, Judge Sullivan points out that while we don’t see the word mercy in the statutes, but what do we see? Well, we see A7, referring to restitution to victims. There’s a kind of psychic restitution you can make to victims. You can apologize the victim, you get satisfaction. A2D makes reference to a kind of rehabilitation, that Catechism that Catholic Church does. I think we have focused too much on rehabilitation as, okay, some kind of treatment program and not enough as moral reform. Now, even if the federal statute doesn’t use those words, the Catechism of the Catholic Church understands it that way and many states do, and I think the ways in which someone learns his lesson may matter.

Now, Judge Sullivan admitted the First Step Act, the Second Chance Act, there are laws that allow reconsideration later where a sense of whether someone has turned over a new leaf, Congress is authorizing some of that, and that is a live debate in our political sphere. And it’s not just left versus right. Those on the right sometimes have embraced this. But let’s focus in on his core case. His core case is about judges at sentencing, what they do. When he rewinds to the colonial era, he tells a story that’s very bloody, and I am very clearly not defending all the particular punishments that were used, but I do think there is a myth that the colonies were bloodier and deadlier than they were.

First of all, in England there were far more executions and far more Catholic laws than in the States. Second, there was a riotous carnival atmosphere at executions in England, in the States, it was very sober with a lot of preachers and speeches about there but for the grace of God, but third, the actual executions were a lot less frequent than Judge Sullivan’s slide implied in my own Commonwealth. On average, there were only about two death sentences a year during the colonial era and half of those weren’t carried out. There was an average of only one execution in all the Pennsylvania throughout the colonial period. Now, one of the ways that happened, Judge Sullivan made a reference to Blackstone. Blackstone approvingly mentioned a practice called pious perjury.

Okay, so-and-so committed a theft. The theft was at least 40 shillings. Capital crime. But the jury would dig in. If this was someone’s first offense and it wasn’t a career criminal, they seemed genuinely penitent. Often rather than contesting guilty, throw himself on the mercy of the jury, and you know what? Very frequently the jury would downgrade it to a non-capital crime and very frequently the judge would recommend even if he were convicted of a capital crime, would recommend commuting the sentence and very frequently the king or later the governor would grant that commutation even to people who were poor and powerless.

So even in the judge and jury paradigm he’s looking at, there is a history here of individualized moral judgment that took into account remorse, that took into account the victim’s healing, that took into account a number of these things and the possibility of transformation. So at root, I don’t think Judge Sullivan and I are that far apart. I do think prosecutors, in my own experience, sometimes don’t seek hard enough punishments. I get why there is a need for maybe some rules and stiffening spines and a review to ensure justice, but I think justice and mercy can coexist and I think a vocabulary that suggests that mercy is some real deviation from our history of justice, both slights how we as Christians should understand it and slights how we should practice it as part of an ongoing moral dialogue.

William M. M. Kamin:

So first of all, thank you both for the… I mean, those are incredibly-

Judge Richard J. Sullivan:

Do I get surrebuttal?

William M. M. Kamin:

I was going to ask a question for both of you that I think sort of jumps off from here. So I think picking up with the theme, the lawyerly theme of focusing on the definitional, I would be curious to hear both of you say a little bit more about how you define mercy in relation to justice, right? I mean, so if we define justice as rendering unto each his or her moral deserts, I mean, I think there are some theologians and philosophers who would then define mercy as something sort of extrinsic to justice, above and beyond justice. Showing grace or forbearance or generosity unto someone beyond their deserts.

And so I think that in that sense, it is worth sort of nailing down when we talk about mercy, are we thinking about mercy in that way, as something that goes above and beyond and exists outside justice or is mercy something I think along the lines of how you were describing it earlier, Judge Babis, sort of intrinsic to the process of determining what someone deserves, to determining whether someone’s outside of that sort of heartland of cases where they deserve more or less stringent punishment than average?

Judge Richard J. Sullivan:

So I mean I do think that that is what most people’s concept of mercy is, which is that you are for no reason… You have not earned it, you don’t earn mercy. Mercy is about the bestower or not the bestowed, but I think that that generally is the sense, that by law, by just deserts you would get this, but we’re going to go low because the person who has the authority has decided to do so and doesn’t have to really explain. As Blackstone said, that’s up to the king and the king gets to do it how he wants. A judge, and I’m not really talking today about prosecutors and I’m not talking about juries. This presentation is called the Sentencing Judge, Mercy and the Sentencing Judge. And it seems to me these are the things that a judge has to consider.

That is a very full toolbox. There is a lot there that a judge can focus on and consider to determine what is an appropriate sentence, what is a just sentence, and a judge has to explain his or her reasons. It seems to me to say, yeah, to go back even further, to just basically talk about what is sufficient but not necessary. I mean, it’s not greater than necessary, right? It’s got to be sufficient to meet objectives. Seems to me mercy is saying this would be sufficient to meet all the objectives, but I’m going even lower because I’m going to exercise mercy, and I don’t think a federal judge has that authority and I don’t know that you would want a federal judge to have that authority. There are thousand sentencing judges in the United States and my expectation is that they would be applying that mercy in very, very different ways and notions of equality matter quite a great deal I think to the folks who frame this thing, and in my experience to defendants too.

I think that one of the goals of sentencing is to avoid unwanted sentencing disparities. And there used to be two judges in the Southern District of New York. One was Morris Lasker who was a rehabilitationist, and he believed that nobody should go to jail unless they needed to be incapacitated. The other was Edmund Palmieri for whom Ruth Bader Ginsburg clerked. He was [inaudible 00:42:20] and he thought everybody should have to go to prison because that we had to restore moral order, moral culpability, and he always gave high sentences and Lasker gave low sentences. There was something viewed as unjust that your sentence would be higher or lower depending what name came out of the wheel. I think 3553(a) is designed to make sure that judges are all applying the same objectives, using the same vocabulary, and then articulating the same reasons for their sentences. If the president wants to go off and do something different, he can, but I don’t think you want judges doing this because it is ultimately going to lead then to perhaps more disparity and a less just system.

Judge Stephanos Bibas:

I think those are fair points. I do want to note a couple of things. There are capital cases where the prosecutor seeks the death penalty, saying this is needed for justice to the victim. Now, sometimes the victim and the victim’s family have a religious or other scruple against the death penalty. In some of these cases, the defense lawyers tried to introduce those scruples and the prosecutors have successfully banned the jury from learning that this message about do it for memory of the victim, from learning that in fact this is not what the victim or the victim’s family needs or wants for healing, this is not for their memory. I think there ought to be something troubling about that. More generally, when we had a discussion about restitution, and I’ve talked about how certain concepts certainly in state courts of rehabilitation can include moral form, I think it’s relevant when sometimes the defendant…

I have a colleague, Paul Robbins, does empirical surveys of what people’s punishment intuitions are, and it’s very interesting. They are not these Kantian crime X deserves punishment Y no matter what intuitions. A majority of respondents say that if the wrongdoer apologizes and makes restitution, he deserves a lower sentence. Almost a majority of people think the victim’s forgiveness is relevant. These are things that can happen in the process. So if you ask how much punishment, how much is just punishment for the offense? You might have a dynamic understanding in which the amount of punishment that is sufficient, but no greater than necessary varies depending on whether there’s some reconciliation, there’s some both tangible and psychic restitution, there’s some reconciliation. Again, I think there needs to be some retribution. I do not think that victims just get to waive punishment entirely, but I have this unusual view that a crime is not just a wrong against the state, it is simultaneously a wrong against the victim. So there ought to be a hybrid right, and there’s probably a range of appropriate punishments.

Well, let’s say a victim is still very badly hurting and the defendant is continuing to blame the victim and calumniate her, et cetera, maybe a higher sentence is warranted, and conversely, maybe that same defendant comes along and says, “No, she wasn’t asking for it,” et cetera, et cetera. Maybe in the same case, the same sexual assault or whatever it is, by the time we get to sentencing, I think a judge might legitimately witness what has happened since the crime and say, “That crime now deserves a lower punishment.” I’m not saying go outside the range. I’m not saying go below the mandatory minimum, but I’m saying there’s a reason why judges have a range of appropriate punishment and at least punishment intuitions and the sentencing systems of most states allow judges to factor that into at least where they fall within the range.

William M. M. Kamin:

So before we open it up to audience Q&A, I have one more question for the two of you, which is a little further out from left field, so I hope you’ll indulge me. It seems that mercy is a faculty of will. There’s something sort of peculiarly human about it or perhaps divine about it in the first instance, but I wonder, it seems to me that at the root of the conversation you’ve been having, Judges, are themes that sort of echo with this kind of algorithmic age that we seem to be in the dawn of with the idea that we could have computers that possess an artificial intelligence, that can take not only mercy out of the equation, but sort of bias and all the other sort of foibles of the human will out of the equation in criminal sentencing. And so I wonder if either of you would have any reflections on what to make of that being on the horizon? Would it be better to have algorithmic sentencing or is there something distinctively important about having this human quality and having not only pure reason but will involved in criminal punishment?

Judge Stephanos Bibas:

I think it’s a great point. I think one of the things I really admire about Judge Sullivan is he means it when he said that bit about showing respect and understanding and forming a human connection. I think a robo-judge, yes, you could turn the sentencing guidelines into an algorithmic exercise, and I think one of the things that frustrates a lot of people is that it is possible to talk, especially if federal sentencing, in numerical terms that kind of eclipse the moral substrate. Now, I don’t think people always do that. I hope that good judges do, but judges can be busy and they can rattle things off, and I worry that the powerful… I mean, sentencing is supposed to be a powerful moral experience. Now, in federal court we have a lot of time to do this and it’s easier, I think it’s harder on overburdened state judges to make clear what is happening and that this is a human-to-human connection and evaluation.

I think what Judge Sullivan and I agree, I think what is troubling Judge Sullivan is not… Maybe I shouldn’t speak for him. Maybe it’s not so much that there is human moral evaluation, but the danger of its being idiosyncratic human moral evaluation. And we absolutely agree it shouldn’t be because the judge woke up cranky or had bad breakfast or got into an argument with his wife that he suddenly gives a heavier sentence, and so I’m not supposed to channel a subjective vengeance from my own heart, I’m supposed to channel the conscience of the community, what would we collectively understand to be the appropriate wrongfulness of this behavior? Now I think it can be helpful to think of that as a synthesis of justice and mercy conversing, and maybe it’s a terminological difference, but I do worry that the pressures are towards a certain kind of algorithmic justice, at least with judges, and then as I said, there’s going to be discretion somewhere in the system, but it’s going to be hidden and it’s going to lose that sense that there was a fraught moral event happening here in the morality play at sentencing.

Judge Richard J. Sullivan:

So look, I would say ultimately judging is about judgment, and I don’t think an algorithm can replace judgment. That’s not to, I think, minimize the potential for bias and for other things that will lead to suboptimal sentencing. There’s no question that there are real disparities and that in the eyes of many, the sentence you get is just turning on a random turn the wheel because different judges there said different credulations. I think the sentencing guidelines, we haven’t talked that much about those today, but the federal sentencing guidelines were effectively sort of a crude algorithmic attempt to take judgment out of sentencing. Judges didn’t like it for sure, but I don’t think it was an optimal system. And so I think that the key is, I guess, I think to have judges articulating their reasons, having those reasons then be tested and evaluated by appellate courts, but make sure that there is also some consistency.

One of the objectives of sentencing is to avoid disparities, not to just have sort of random windfalls to some and the lack of windfalls to others. And I think that is something that we should be very concerned about. So I don’t think a machine is going to do this even though it may not be much worse at the end of the day, but I do think the solemnity of a sentencing is palpable. If you haven’t been to one, you should go to a federal court particularly because I think most of my colleagues that I’ve seen really pay great attention to these. They allot a lot of time, they listen to a defendant, speak to the lawyers, speak to family members, speak to victims speak. They’ll sometimes take a break before imposing sentence so they can reflect on what they’ve heard. It is not a mechanistic system. I think it is far from it. It is a very bespoke system and that’s its strength. I think what we want to do is make sure that we are applying it as consistently as we can, but I wouldn’t say an algorithm will do that.

Judge Stephanos Bibas:

Let me just underscore one other point of agreement that I don’t think has been foregrounded here. People ask me what does it mean to be a Christian in a justice system? And I think one of the things I stress is it doesn’t mean that I try to certainly consciously warp the results I reach, but I do try to stress to young lawyers that the way we do what we do matters as much or more than the result we reach. I think my oath forbids me to just inject my own predilections about punishment, but I think the things that Judge Sullivan put up on a slide are hugely important. Treating people with respect, talking to them, trying to communicate with them.

These are things that our system, again, especially at the overburdened, lower state levels, often fail at. I think we have a luxury in federal courts that our dockets are so much lighter. But I think letting people know that they’ve been heard, that we took them seriously, that on the other hand they have to think about how bad this crime was and how much this person was hurt. That kind of communication is itself an important part of treating people with Christian dignity in the Imago Dei.

William M. M. Kamin:

Beautiful. I think we’ve got time for a question or two from the audience.

Angelica Tom:

Well, I’m going to start off with a question that came on on why, and this is in reference to Judge Sullivan’s comment about Hadley Arkes versus Joel Alicea, that debate there. And the question is, isn’t all good law a subset of natural law?

Judge Richard J. Sullivan:

Well, that may be true. I think one can believe in natural law and agree with Hadley Arkes in his views of it, but still say that a judge does not have the jurisdiction to be striking down acts of Congress or constitutional provisions because they’re inconsistent with natural law. That’s really, I think, the issue. And I think most judges would, I think, recognize very quickly that they don’t get to do that even though they might think that this is a violation of natural law. Thoughts on that?

Angelica Tom:

Raise your hand and Carol will walk to you with a microphone.

Audience:

Can you hear me? Yeah. Okay. Was I the only one with a question? I think my question is primarily for Judge Sullivan because I’m literally persuaded by Judge Babis. [inaudible 00:55:15].

Judge Richard J. Sullivan:

Well, there’s always one.

Audience:

But I wonder if the distance between the both of you is actually even smaller than Judge Bibas thinks it is. So Judge Sullivan, just to make sure I understand your position correctly, is the thought… So I feel like mercy is perfectly compatible with justice and to my understanding, you think so it might be too, but the worry is that it could sometimes cut against justice and then the penal system in particular, you may not want that. And so just to give a thought experiment where I’d love your thoughts on this, if you have, let’s say, a murderer and you could do one of two things, you could sentence them to death or you could sentence them to solitary confinement, you might think that solitary confinement is the more merciful option. Let’s just say that it is. I know that would be contested, and-

Judge Richard J. Sullivan:

Why couldn’t it just be the more just option?

Audience:

Right. In this case… Well, okay, maybe that’s your response, but I’m thinking that in both cases it hits all these marks on board, it hits A through D, it hits all of them. It’s reflective of the crime that the murderer committed. In both cases it will serve as deterrence, et cetera, et cetera. And again, this goes for both punishments. It seems to me that there’s nothing wrong with going, “Yeah, but solitary confinement is the more merciful one.” So it’s like we’ll weight both our options, they’re both weighed equally, why not go with the more merciful option at the end of the day?

Judge Richard J. Sullivan:

By more merciful, you just mean more lenient?

Audience:

I don’t know. And I think this gets to the question that was kind of driving this whole conversation of what is mercy? I mean, when I hear have mercy, it does sound a little bit like go easy. I think when we say the Q&A for example, and we’re asking God for mercy, I think it is an acknowledgment of go easy. But I don’t know. I’m just wondering your thoughts. Where am I going wrong here, is primarily-

Judge Richard J. Sullivan:

I mean, I’ll give you a very simple example. There are certain crimes that Congress has decided that require a mandatory sentence. And so five kilos of Coke, if you’re trafficking five kilos of Coke, that is a 10-year mandatory minimum sentence. If that is the crime of conviction, the judge has no choice, assuming there’s no safety valve, but there’s a couple of exceptions that have been created, but assuming they don’t apply, the judge has no choice but to apply a 10-year mandatory sentence that. Those are relatively easy ones in a sense that you don’t have any math to do, and that the outcome is pretty much a foregone conclusion going in.

One of my colleagues was once quite unhappy that the government insisted on proceeding with that charge. The defendant pled to it, and the judge said, “No, I’m only sentencing them to five.” That I think was an act of mercy. It was also appealed and overturned in about 30 seconds. I mean, it was a very easy appeal because the judge didn’t have the authority to do that. So I don’t think Judge Babis, I mean, even in the sense that… I just mean that you wouldn’t say a judge could do that, right?

Judge Stephanos Bibas:

No, but let me note that the prosecutor is pretty free to bring that charge or not bring that charge, and I think we should be mindful of is that a wise system, we may work within it, but is it wise for prosecutors to have very little constraint on whether they bring such charges or not, and then to say that if they choose to bring it, then the judge must apply it or not? Look, I’m sworn to uphold the laws Congress passes. It doesn’t mean we can’t critique whether that is the right distribution of power.

Audience:

Thank you both. This question is for the both of you. Something you mentioned, Judge Babis, your introduction was that this distinction… That the West in general has been very distinction happy, but if we really think that particularly from an Eastern Christian perspective, I’m Eastern Catholic myself, these are what Aquinas might call virtual distinctions between justice and mercy. So my question for you both is are we really talking about different things when we in the Western tradition, put justice and mercy as if they were opposed to one another, and if this is in fact a virtual distinction, not necessarily a real distinction, what can we do, whether it is in terms of sentencing reform or just as judges to really bring those closer together, just synonymize mercy and justice rather than bringing them into conflict?

Judge Stephanos Bibas:

I think rhetoric matters, and I think that our rhetoric suggests a certain Kantian approach, and again, Kant counted himself a Christian, but he is a particular kind of Christian that I’m not sure his approach is simpatico with what I understand about the ancient Christian tradition, and I worry that it distracts from the idea that this is all things considered kind of prudential judgment about how much punishment is just in these circumstances and the need for the kind of tailoring and the need for kind of understanding of the defendant and the victim that doesn’t collapse into just emoting all over the place, but involves a reasoned evaluation as well as will.

Judge Richard J. Sullivan:

Look, I think my response would be that there’s a lot of room for discretion that judges are given. I think to just say mercy is equivalent of leniency or is the equivalent of finding less culpability in certain circumstances is to render the word sort of meaningless, and I think the fact that it does not appear in a statute, it does not appear any place else, I think judges should be reluctant to try to formalize the use of something that isn’t there. I think there’s ample room here to come up with a sentence that the judge thinks is just, and so I think judges are kind of all over the place. I mean, if you see the regional disparities and the disparities within courts, different judges on the same court, that they are significant.

I don’t think it’s because some of them were merciful than others. I think that they’re weighing these different factors differently. Some are primarily focused on rehabilitationist goals or other utilitarian goals, and some are focused on purely the moral culpability of people. In some cases, if you say you’re sorry, you do a lot better than if you don’t say you’re sorry. If you go to trial and don’t say you’re sorry, you’re going to do a lot more time than if you plead guilty and say you’re sorry even if you don’t mean it, but I think somebody’s got to have this discretion, and I think you want judges to have it because they at least have to state their reasons.

William M. M. Kamin:

I think we’re-

Judge Richard J. Sullivan:

Oh, one more.

William M. M. Kamin:

Maybe we’ve got time for one more. Yeah, how about you, Matt? Or here, Carol.

Audience:

Thank you. So I think you’re both so close to each other to tell you the truth, and I think that that 3553(a), the sufficient, but not more than necessary actually is a way of writing mercy into it, and also we’re all obliged to natural law, whether we like it or not. I know the modern rewriting of what it is and all, but natural law will get us one way or another. My concern is about the unjust. I know it’s only indirect, but actually it comes out on you, the unjust prosecutor who is driven by ambition and all kinds of things, and who hides mitigating evidence from the other side that if the attorney or the guy knew about it doesn’t come in front of you because he’s withheld it and maybe the attorney doesn’t even know it exists at all.

So it’s written into the system that you’re not going to really see in front of you, and it seems that stuff that actually changes the picture. And there must be a way that the sentencing judge… I’m not sure if by sentencing judge, it means that you haven’t seen the rest of the case at all, but it seems that that needs to be always searched for by the sentencing judge because hidden evidence that would mitigate the whole thing is key to all these other things. Your comments.

Judge Stephanos Bibas:

So in the federal system, not only… In all the systems, the prosecutor has an affirmative obligation to turn over evidence that would mitigate the punishment or could tend to mitigate the punishment, but also in the federal system, the probation office does its own investigation. Now, what’s interesting about it is… I’ve not heard about these cases happening. Of course, they might just stay submerged, but often there might be a danger the other direction, which is if the case doesn’t go to trial, the judge doesn’t learn about all the aggravating evidence, whereas if the case does go to trial, the judge learns a lot more about the case.

So is that the judge is being unduly harsh in the 5% of cases go to trial, or is the judge potentially being unduly lenient? Is the judge in fact calibrating the discount to the level of remorse or apology or forgiveness, or is it just an automatic plea bargaining chip? I think there are some difficult issues here. Of course, by the nature of your hypo, it’s impossible to know how often it happens, but I don’t have an anecdotal sense that that is happening all that often.

Judge Richard J. Sullivan:

Yeah, that’s my sense, and I think the key is… I use the quote from Washington, the true administration of justice is the firmest pillar of good government. I think that turns on judges who take their oath seriously, who take the law seriously. I think it also turns on prosecutors who take their oaths seriously, and defense lawyers who take their oaths seriously. It means funding defense lawyers so that they can provide meaningful representation to their clients. I think in the federal system, it is quite good. The quality of federal defenders is very, very good, at least in New York. The quality of the Criminal Justice Act panel, private lawyers who are appointed by the court to represent indigent defendants, which is over 85 or 90%, I think, is quite good, and I think as a judge, you only have the information that you have, but I think the expectation is that a defense lawyer will rally whatever information is relevant to sentencing, that a defense… You’re shaking your head. You don’t think that that’s true?

Audience:

I guess from personal experience with lawyers, I realize that some of them, it seems to me many, come into the mitigating evidence quite accidentally afterwards.

Judge Richard J. Sullivan:

Well, I mean it will be available afterwards. I mean, if it is available afterwards and there might be other relief, and that’s an area of expertise for Professor Kamin. He does a lot in connection with habeas. But out of sentencing proceeding, I mean, there will be submissions, and in my experience, certainly the defense generally puts much more into this than the government does. The defense is really working very hard to present a portrait of their client that shows his humanity, shows that this is a person who is much more complicated than the one criminal act, that they’re much more than that worst act that they ever committed, and I think they do a pretty good job of it. I think the government tends to just basically stick to the facts as they existed at the time of the guilty plea because they’ve moved on to the next thing.

And so I think that’s partly the reason why the majority of sentences in the federal system are below the sentencing guidelines because I think the defense has taken it very, very seriously to make sure that they are, I think, showing the judge the humanity of this person, which is their obligation. They have an obligation to do that.

William M. M. Kamin:

Thank you both. Thank you all.

Judge Richard J. Sullivan:

Thanks.

William M. M. Kamin:

Thanks to CIC.

Bill Saunders:

Welcome everybody to our eighth annual Human Rights lecture. This is previous speakers in the program and the lecture series have been Robert George Chen, Guang Chen, members of the Commission on Unalienable Rights, Ambassador Sam Brownback. Father Kevin Flannery from the Gregorian, John Keown from Georgetown, and Carter Snead from Notre Dame, almost all of whom are good friends of our speaker tonight. I do have a couple of things I want to say. Marianne, you may want to sit down for a second. I want to say something first about the IHE. This lecture is the annual human rights lecture in the Master of Human Rights program and the Master of Human Rights program is a project of the IHE. The IHE is one of the Institute on Human Ecology is one of the nation’s leading institutes committed to identifying the conditions conducive to human flourishing from an interdisciplinary perspective, bringing scholars from across the university, the country, and the world to think about these questions.

And I want to thank to our IHE staff, to our executive director, Russ Hittinger, who is here, to our managing director, Steven Higgins, to the rest of the team for organizing the event. And thanks to our co-hosts, the Center for the Constitution and the Catholic Intellectual Tradition here at the Law School at Catholic University. We will… I’m going to have a little bit more to say about our speaker, then we will take questions and then there will be a reception. So let me say, for me, this is a great honor to have Professor Glendon here and I can’t be too brief, although I’m going to try to be brief, but I could sum up who she is by saying I think she’s the world’s preeminent human rights lawyer. She is learned hand professor of law Emerita at Harvard Law School and I’m so proud to say a member of the Advisory board for the MA in Human Rights.

I first met Professor Glendon at the Ramsey Colloquium, which is also where I first met Russell Hidinger, that was convened by the great Richard John Newhouse. And I just want to take a brief aside to say Richard Newhouse’s papers are here at Catholic University as is Professor Glendon’s, which is quite an honor for our institution. The first thing I think I did for the Ramsey Colloquium was a statement on the 50th anniversary of the Universal Declaration of Human Rights. So that was in 1998, but my students will read that next semester because I think it was an excellent statement. Her book on the drafting of the Universal Declaration of Human Rights, a World Made New is the text to read about the subject. And again, my students will study that next semester. And I’m also just happy to recall the Professor Glendon served on the board of the organization that I started to aid people who were suffering genocide and slavery in Sudan again, many years ago.

But she is not only a human rights lawyer, but she is a human rights practitioner. She’s the first woman to lead a Vatican delegation, which was to the Beijing Conference in 1995. And she has a great account about that of what happened at Beijing, which is that you can find at First things. You can also find our Ramsey Colloquium statement from ’98 at First Things. I urge you to read them both. If you want to understand these things in more detail, I urge you to read them both.

She also served as US Ambassador to the Holy Sea and her recent book about serving in the court of three popes is going to be a discussion that we will have as an IHE virtual event in the spring. So watch your emails because I’m really looking forward to that. And it’s a wonderful book. Go out and buy it, read it in advance. You can ask questions during our virtual event. Most recently, she was the chair of the US Commission on Unalienable rights. In fact, the first meetings they had that were public, I took my students to that. And then unfortunately for everybody, COVID came and most of the meetings were no longer public after that. But the commission issued a great report.

It was the Secretary of State asked the commission to advise him on how human rights should be taken into account in US foreign policy. Again, it is a great account, particularly looking at two sources, the American tradition, but also the international tradition. Again, the importance of the Universal Declaration of Human Rights. We will read and study that in my class. Anybody listening to this lecture who happens to be interested in the human rights program, you can go to mahumanrights.com M-A like Master of Arts, mahumanrights.com. We’d be happy to welcome you into the program. So it’s my privilege to introduce really my hero who’s going to speak about saving human rights in the New World Order. Professor, Glendon.

Mary Ann G.:

Well, thank you and thank you Bill for that very kind introduction and thank you all for coming out tonight to hear a talk on a subject that Bill and I discussed a few months ago when he asked me to come down and gave me the honor of giving this annual human rights lecture. He said, “What should you talk about?” And I said, “Well, we both know that an idea that has been important to us for almost all of our academic and professional lives is now in crisis, and maybe this is a good time to think about why that’s so and what could be done about it.” So that’s the topic we settled on for tonight. But I want to start by talking about a little bit about a movie I found recently. Sometimes at the end of a long day, you really want to find something that’s worth watching and this is often a hopeless search.

But on this particular night recently, I was scrolling along and I found a 1947 film by the great director John Ford, you know him from The Quiet Man, the Searcher Stagecoach, and it is a movie you won’t find, I mean very easy to pass over because it’s called, The Fugitive. And there’s another movie that has that name. But this Fugitive, I looked it up and it’s said to be one of John Ford’s favorite film, something that was close to his heart, so I went, oh, I have to watch that one. It is set in Mexico in the late 1920s at a time when the practice of Catholicism was effectively made illegal and persecution of Catholics in general, Catholic priests in particular was so severe that between 1926 and 1934, a short period of time, the number of Catholic priests in Mexico went from 4,500 down to 334. And the film sat at that period is about a priest, a priest on the run.

He’s trying to escape both bounty hunters and government authorities. He’s in plain clothes, he’s no hero in the conventional sense. He’s terrified. All he wants to do is find a safe place. And he’s no saint in Bram Green’s novel on which the movie is based. He’s called a whiskey priest. And in the movie he’s clearly a man who has failed his vocation in many ways, but along the way terrified as he is. He does stop to administer the sacraments to people who approach him even though he knows that a betrayer may lurk among them.

John Ford introduces the movie. He comes on screen and here’s what he says. “The film you’re about to see is a true story. It’s also an old story and it’s being played out today in many parts of the world.” And as you students of Professor Saunders know, all of us know, it’s still being played out today in many parts of the world. That film came out in 1947. One year later, the nations of the world got together in the United Nations and they took a step that they hoped would shift probabilities in a better direction. That was when they approved the 1948 Declaration of Human Rights. They proved it.

They liked to say, or human rights people liked to say without a dissenting vote, yes, there was no dissenting vote, there were eight abstentions. It was a very minimal set of principles, but they pledged in the declaration to try to promote those principles. And they agreed that those principles, that small set of principles were standards by which their conduct could be judged. Now, I put this Eleanor Roosevelt’s opening words when she introduced the declaration to the General Assembly. I put them on this slide because she makes an important point there that is almost always forgotten. The Universal Declaration of Human Rights is not a bill or a list. She says it’s important to see what the nature of the document is. It is, this is her exact language. “It is a declaration of principles, of principles about rights.” Now, as you can imagine among political realists at the time, or at least people who thought they were political realists among international lawyers, there was a good deal of skepticism about whether a non-binding set of principles would be anything more than words on paper.

The most famous international lawyer of the day, Hersch Lauterpacht, wrote, quote, “It is not an achievement of great magnitude.” End quote. He predicted that its moral authority would be negligible, but as many new nations entered, the United Nations support grew for this non-binding declaration and its moral authority actually came eventually to be more influential than the enforcement mechanisms of two 1966 covenants that were enacted, that were approved to give it teeth. Those principles, I’m just recounting what you already know, they became rallying points for great grassroots movements that did the impossible. They overturned the seemingly indestructible totalitarian regimes in Eastern Europe. They helped to bring about the demise of apartheid in South Africa. I think it’s not an exaggeration to say they transformed the moral landscape of international relations by a knowing the principle from the of 1648 that how a nation treated its own citizens was nobody’s business, but that nation’s.

So the dilemma that confronts us now, why is support for an idea that gave hope and freedom to so many people? Why is support for that faltering and can anything be done to reinvigorate it? And those are the questions I’d like to examine from three directions. I’d first like to take stock of what actually are the current challenges? Why is the universal declaration and that whole project in crisis? Then I want to go back a bit and see what can be learned from the history of how similar challenges were dealt with in the past. In particular, I think it’s good to remember that the whole idea of universal rights, that there are principles that could apply to everybody was fragile always, and it was always going to be difficult to sustain. And then I would like to conclude with some thoughts about what, if anything might be done to reinvigorate the project.

So if we look around to assess the current challenges, they’re pretty daunting. For one thing, the post-war institutions like the United Nations, those institutions that we’re supposed to have been the core and the heart of what we used to call the rules-based international order. You don’t hear that phrase very much anymore, except when it’s ordered by wistfully or with irony, those institutions are becoming weaker and less relevant. And then there’s the sense of common humanity that had a moment more than a moment after two horrible world wars. That sense of common humanity seems to be losing traction with regional and ethnic conflicts. Some countries, some very powerful countries, no longer even pay lip service to the idea of universal rights. And even countries with strong national rights traditions like the United States are not as enthusiastic as they once were. They tend to downplay human rights and often in their foreign policy.

A congressional report that was issued earlier this year, states, “US policymakers are growing less optimistic about promoting democracy and human rights.” That’s even though by statute, that’s what they’re supposed to be doing. And here at Catholic University, I think we have to say that even the Holy Sea, which once spoke out with a strong moral voice on human rights has often gone silent on gross violations of religious freedom, particularly in China, but also in some other places and even longtime human rights supporters, people who have given much of their lives to the cause of human rights, even among them it is common to say now that the project is in crisis. Now I have to see if I can go to the next slide.

Well, I may need some help. Oh, here, found it. What we have here, Professor Saunders, you mentioned the endorsement, the strong endorsement that First Things magazine gave to the Universal Declaration of Human Rights on its 50th anniversary. You and I hope to write that endorsement. What is this? The of first things now is against human rights and I think not really. I wrote a response to that where I said, you don’t really mean that. But anyway, he’s against what I would call the abuse of the concept. But you have debasement of human rights. You have a book by the former head of the Helsinki Federation who says that in the book, The Debasement of Human Rights, he says that, “Movement to which he gave much of his life has lost its essential meaning and moral power.” University of London human rights specialist titles this book, the End Times of Human Rights.

Now, whatever the reasons there are for that loss of confidence is certainly not that violations of human rights have declined. And the contrary, recent surveys attest that the worst sorts of violations, torture, arbitrary arrest and imprisonment, human trafficking crackdowns on freedom of speech and religion have reached new heights in many parts of the world with Christians and Muslims being the main victims. So how do we explain the current erosion of support? I think to put that in perspective, it’s helpful to keep in mind how difficult it was to get the idea of universal human rights accepted in the first place. Almost everybody today assumes that the main reason the main impulse for an international standard after World War II was driven by the unprecedented death and destruction that occurred in two world Wars. But there’s more to the story to that and the rest of the story is more instructive for understanding the present situation.

So during World War II, allied rhetoric often said that we were fighting for human rights. But when the Allied leaders gathered together after the war to plan for the new organization that they would call the United Nations, the main things on their agenda were, and their main concerns were the security of frontiers. And to establish an organization where disputes could be settled among nations and hopes of avoiding future aggression. Human rights was not on their agenda. And when you think about it, that should not be surprising. After all, two of the so-called big five, France and Britain were presiding over large colonial empires in the United States, segregation was legal in large parts of the United States, and the Soviet Union had its own reasons for avoiding scrutiny of how it was treating its own citizens. But the absence of a common standard posed a dilemma for the allies when they had to figure out what to do with the principal, German and Japanese leaders.

Churchill, his idea was round them up and shoot them. Stalin’s idea was for a show trial where their atrocities could be put on display. He had experience with show trials and the American view was that they should be given a proper trial where they could present their defenses and receive due process. But there was a problem, as you know, the American view prevailed, but where was the standard by which the defendant’s conduct should be judged? There’s a principle of justice and nearly all the world’s legal systems, nullum crimen sine lege, no one should be convicted of a crime unless it was a crime at the time that it was committed defenders of the trial, most of the defenders of the trial took the position that the trials themselves would provide an international standard for the first time of punishment for what would later be called, crimes against humanity.

But many, many prominent jurists at the time warned that that would set a dangerous precedent, that the trials would be retarded as Victor’s Justice dressed up as a court proceeding. The chief justice of the United States, Harlan Fisk Stone said, and I quote, “The trials are a sanctimonious fraud and a high-grade lynching party over there in Nuremberg,” that some of you know was a dig at his colleague Robert Jackson, who had gone over. He took a leave of absence from the court to go over and become a prosecutor at Nuremberg.

The problem bothered people in the UN so much that work was speeded up on what became the Genocide Convention of 1948, which under which the most serious crimes could be prosecuted in the future. And in 1949 there were four Genocide Conventions. But what about a more far-reaching a broad international standard of human rights, the obstacles to that work far more formidable. Besides the relative lack of interest on the part of the allies, there was the concept of national sovereignty that had prevailed since the Treaty of Westphalia and the American Association of Anthropologists. Back then, anthropologists like Ruth Mead and Margaret Benedict, Franz Boas, they taught all of us college students that there were huge differences among the cultures of the world and they didn’t say much about common humanity. So they wrote the UN and they said, “You will never succeed in finding a list of principles that all cultures can agree upon.”

So in view of all that, one might wonder how on earth did it ever happen that the UN Charter begins 1945 with a resounding affirmation of fundamental human rights? And how did it happen that it proclaims the equal rights of men and women in 1945 and the equal rights of large and small nations? Just think how astonishing that would’ve been at the time. Well, how did it happen? After the allies had, the leaders had arranged everything that was important to them. They had what they called a Founding conference at San Francisco and they invited representatives of 50 nations to come to the conference. And many of those delegates were from what used to be called small nations, not small in size or population, but relatively small in influence. And many of those delegates, those men and women that came from near and far had their own ideas about what was important.

The general mood of that group reflected a phenomenon about which [inaudible 00:25:20] had written after World War I. He said that, “Wars on a vast scale so unsettled, so disrupt ideas about how things are that they contribute to a heightened awareness that the way things have always been is not the way they always have to be.” And so these delegates from near and far when they got to San Francisco, they formed a coalition to demand that the allies live up to their war rhetoric, which spoke of a fight for better standards of living in larger freedom. A phrase that is in the UN Charter, in the Universal Declaration, better standards of living in larger freedom. But their efforts got nowhere until they got the support of the one of the big five that was open to their ideas. And that of course was the United States where Franklin Roosevelt just died.

Harry Truman was the new president. The idea of better standards of living and larger freedom was perfectly compatible with the Roosevelt New Deal and with Truman’s Fair Deal ideas. So once the coalition had the backing of the United States, they were able to get several references to human rights in the UN Charter. And those references included the establishment of a human rights commission whose first task was to draft a document that became the 1948 Universal Declaration. Now as I mentioned, although there were no dissents, there were eight abstentions out of I think 57 votes and they were Saudi Arabia, the six-member Soviet Bloc and South Africa. But I think it’s fair to call that vote an impressive political achievement because the mere fact of abstention is some evidence that there are some things that are just so terrible that no one is going to openly say that they approve of them.

And some things are just so good that no one is openly going to admit that they don’t approve of them. So after that vote of approval, the votes kept coming in as the un expanded and the Soviet Union, even the Soviet Union eventually started thinking that the economic principles were all right if they were properly interpreted to mean that the state was in charge of enforcing them. So the principles, as Mrs. Roosevelt said, those non-binding principles, they became rallying points. They became rallying points for activists who pressured governments to live up to their pledges and they trained the very effective thing for a while. They trained the spotlight of publicity on abuses that would’ve remained hidden in former times. So again, the question, how did a document that had such power to influence and inspire for such a time, how did it lose broad support?

And as I see it, the loss had two stages, two initial stages. One was the practice of the United States and the Soviet Union, the two Cold War antagonists. The practice of, now I’ve got to change this here… a-ha, of treating the declaration as having two halves, the political and the social and economic. And the United States championed the one, the Soviet Union championed its own interpretation of the other. Well, that was perhaps inevitable, but it set the stage for something very unfortunate that happened later on today, nearly everybody, including dedicated human rights activists, treat the Universal Declaration as a list of separate articles like an a la carte menu from which you can pick and choose your favorites. And that went a long way toward undermining the declaration’s claim to universality for all of its rights. Now, the second unfortunate development that I want to call attention to is I the way after the great successes in the 1980s, the Human Rights Project, I would say it became a victim of those successes.

In the 1990s, there was a veritable explosion of human rights activity. Well sounds good, but wait. Established rights organizations and their funders began looking for new causes to champion and various special interest groups began seeking to have their agenda items declared as international human rights. So an article in foreign affairs at the time noted, quote, “Much of the human rights community has not only shied away from expressing qualms about rights proliferation, it’s often led the process.” Now I quickly have to say that the framers of the Universal Declaration never expected it to be a closed catalog. They expected that over time with experiences in different countries that knowledge would grow, there would be a certain expansion and refinement of principles. So they did not have the idea of a frozen document. They had an idea of principles stated in a general way that could develop over time, but they had two other principles that would keep that process more or less in the realm of having a claim to universality.

And one was that new principles about rights or new interpretations or new developments would have to show some plausible grounding, something that justified the claim to universality. And the second caveat would be respect for the principle of subsidiarity, which as Paolo Carazza has put this so beautifully, subsidiarity and international law protects, quoting here, protects the freedom and integrity of local cultures without reducing particularism to pure devolution and affirms internationalism without the temptation for a super state or other centralized global authority. So based on those considerations, the framers did include some relatively new ideas about rights. They included some social and economic principles that were part of the New Deal in the United States, and that had been in many European constitutions, Norway, France for example, since the early 18 hundreds. So social and economic principles to be brought to life in different ways. This is Article 22 of the Universal Declaration to be brought to life in different ways depending on the political organization of each state.

The Soviet Union could do it its way, the United States and other way, and depending at the insistence of India and Egypt, hey, we haven’t got enough money to do that right away according with the material resources at the disposition of each state. But it was not long into the 1990s after the human rights idea really shown its moral force that we had the conferences, the UN conferences at Cairo and Beijing where mostly western groups were arguing they were trying to get their agenda item of abortion rights declared an international human right even though it was not widely accepted in other parts of the world and often not, it was still controversial in the countries that were promoting the idea. So you were off to the races with the deconstruction of the Universal Declaration, and I’ll just mention a couple of other sources of disenchantment. One was simply the idea in many parts of the world that the human rights language was being used to impose ideas on them that were not universally shared and really not rooted in their own cultures.

A lot of resentment on that part. And then there was a disenchantment, a certain disenchantment with some international bodies like the Human Rights Council that were charged with responsibilities relating to rights, but were subject to pretty serious complaints of susceptibility to lobbying and political influence, lack of democratic accountability, lack of public scrutiny, and having some of the world’s worst violators among their members. So in some the hard-won authority of the International Human Rights Project always fragile. It’s been impaired from so many directions that it’s hard to avoid the conclusion that by trying to do too much, it is often undermined its own credibility and indeed failed to do the good that was possible. Which now brings us to the question of whether the project that did so much good once can be reinvigorated. So one thing is certain the enemies of free societies hope the answer is no, and it would be somewhat reckless to confidently say yes, but I think one could feel confident in suggesting that the chances would be improved if human rights defenders would recall four elements of the wisdom of their very practical-minded predecessors.

First, the number of principles that many different cultures, people of many different nations can accept as a common standard is relatively modest. That’s why the framers intentionally limited it to principles that could be grounded in most of the world’s religious, cultural and philosophical systems. Not Neoism, but most. Second, universality of principles cannot mean uniformity in bringing them to life, subsidiarity. Vienna declaration puts it very well. “The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.” But a big qualification of that principle is obviously unlimited pluralism would lead you right into total devolution. So a third element of the wisdom of the framers limits the leeway for variation with the principle that no fundamental right can be completely ignored or completely subordinated to another. That’s the interdependence. The Declaration’s not a list. Its principles are interdependent and that’s made clear by hermeneutical instructions that are embedded in the Declaration.

All you have to do is read it. It’s one page, but it’s not a list. So fourth, the principle of subsidiarity, which is explicit in international law and which emphasizes the primacy of the lowest level of implementation that can do the job reserving international actors for situations where national entities are incapable or unwilling to address the issue. If you put those four simple instructions from their bits of wisdom from the framers together, one certainly can’t claim that they will save the Universal Declaration, but they would help and I think they would help to bring renewed attention to the areas where human rights movements had their greatest successes and where grave violations still continue.

I think a good place to start would be with the rights that are put first in column one of the Universal Declaration and the rights that were made non-derogable by the 1966 Convention on Civil and political rights, so such as protections against torture, cruel and inhuman punishment, retroactive penal measures, the Nuremberg problem forcible transfer population discrimination based on race, color, sex, religion, nationality, and non-derogable means that these rights are so important that they can’t be suspended even in times of national emergency. Now I have to admit that with respect to the question with which we started that Professor Saunders thought we ought to ponder whether the project can be saved, I have to admit, the prospects do not look rosy. In fact, if one looks around the world for areas where the strongest support for human rights exists, you won’t find it among the nations at the center of the world stage.

In fact, interestingly, just as in 1945, the strongest interest seems to be among nations and political groups that by themselves do not exert great power or influence. I’d like to mention here, collaboration recently established between the world’s second largest political party organization. It used to be called, Christian Democrats International. It’s now called, Centrist Democrat International, second largest. First largest is Socialist International. The Centrist Democrat International is based mainly in Europe and South America. And the other partner in that collaboration is the world’s largest Muslim political organization. I dare say this is one that most people in the west haven’t heard about, but it has conservatively speaking a hundred million members, mostly based in Southeast Asia and it is dedicated to religious pluralism, condemnation of violence to further religion, condemnation of using religion as a pretext for violence. It’s called, Tanavatu Ulama, it’s based in Indonesia.

These two groups, this huge Muslim group and this centrist international political group got together in 2020 and signed a joint resolution which reads in park, “The Universal Declaration of Human Rights is a set of principles that still can serve as a common standard for all nations.” I find that heartening, I don’t want to exaggerate its importance, but I do think it is plausible to imagine that renewal of the human rights project might come as in 1945, outside the center of the world stage, at least at first. And at any rate, that collaboration is some evidence that resentment of abuse and overextension of human rights is not resentment against the idea of human rights itself. And I think we’re all aware of how many people disappointed in misuse of the human rights concept of kind of come to be bitter about the very idea of the concept.

But these two organizations still think those 1948 principles could be accepted as universal. But as in 1945, I think it’s hard to imagine that gesture could develop into something could succeed in reinvigorating human rights without the cooperation of the major power that has the longest history of championing international human rights. And that, of course is the United States. That is why in 2020 the US State Department Commission on Unalienable rights urged the United States to resume its historic role and the role that it has by statute to champion fundamental international rights. Full disclosure, I chaired that commission, its members included Democrats, republicans and independents like myself, and we were unanimous on everything that’s in the report and urging the development for the United States of a foreign policy that would once again express American ideals as well as American interests. We were of course not naive about the fact that foreign policy requires prudential judgments of all sorts. And we went into some detail about our understanding of that fact.

But we also said that complexity is no excuse for indifference. And we pointed to the fact that the diplomatic toolbox is very large indeed, and there are many tools that can be used according to circumstances. But when our commission presented that report in 2020, there was a journalist there who asked a very blunt question. He said, “What’s going to prevent that report from gathering dust on some state Department forgotten shelf?” Well, it was a fair question.

A few months later, the incoming Secretary of State repudiated the report in a speech that indicated he clearly hadn’t read it. And so far the current administration has not shown any interest in reviving the report. So I have to remain hopeful that someday maybe somebody will investigate that dusty shelf and maybe actually read it and find some good ideas. But right now I have to conclude this talk with some thoughts about in the meantime what the prospects are for the International Human Rights Project. And I think most importantly, with all the disappointments, we should not forget how much that brave project after World War II, how much it accomplished and how it continues to accomplish many good things. Even now, the declaration does remain the most important reference point for cross-cultural discussions of human freedom and dignity. Even now, the spotlight is turned on and exposes many abuses that would’ve been ignored in the past, especially flagrant and repeated abuses.

And even today, most governments go to great lengths to avoid being blacklisted as notorious violators. And nor should we forget that the men and women who framed that project had no illusions about how difficult it would be to sustain. Most of them, after all had lived through two world wars. They had seen human beings at their worst, but they had also seen human beings at their best and they took encouragement from the fact. And I think we can take encouragement too from the fact that while human beings are capable of gross violations of fundamental rights, they’re also capable of imagining that there are rights to violate that we are capable of imagining those rights. We are capable of putting them into declarations and constitutions. We’re capable of orienting our conduct toward them and of making excuses when our conduct falls short. Now I have one more slide here. I hope I can do this.

This sculpture, I have a daughter who’s an art historian who doesn’t think much of this sculpture, but I think it’s very expressive. It happens to be on the plaza outside the UN building in New York, and I think it captures something of the idealism tempered with realism that is needed to keep the project alive. It was a gift from Italy to the United Nations. Some of you might be thinking it’s not very nice to give somebody a gift that’s already broken, but I think actually that was appropriate too. It’s suggestive of the globe, but there’s something wrong with it. Definitely. It might be cracked because it’s defective or it might be like an egg that it has to crack in order for something else to happen. And in fact, there is another brightly shining sphere coming along inside, but that one’s already broken too. Is that perhaps a suggestion of original sin?

Still there is a tremendous sense of motion of dynamism and emergent possibilities, and that’s how it’s been with the Human Rights Project. Yes, it is flawed. Yes, dreadful violations still occur, but it has inspired countless men and women to do something about it. And so far, even in times of break challenges, there continue to be men and women who come forward very courageously, step up to the plate, tell the truth about what’s happening. In the film that I mentioned at the beginning of this talk, the priest is eventually betrayed, captured, and he’s hanged in the public square and the file scene shows a little band of men and women terrified. They’re huddled together in a darkened church. The church has been shut down by the government. They hear a knock on the door and they figure it’s all over for them too. They open the door and they see a young man standing there and he says, “I’m the new priest.” Thank you.

Bill:

Thank you, Mary Ann. Tony, should we use this microphone?

Tony:

We’re here for questions.

Bill:

Okay. So do you want to just recognize people in the audience? We’ll have questions now. How long Tony? 10 minutes or something?

Tony:

15 minutes, yeah.

Bill:

Okay.

Mary Ann G.:

Well wait, when don’t you…

Bill:

Okay, I’ll do that. Okay. So anybody have a question that you’d like to ask? Yeah, go ahead. This is Soledad Burleson from the Law School.

Soledad B.:

Thank you, Professor Glendon. It’s great to see you again. Yeah, thank you. So I was thinking if part of what had happened is based on that we didn’t have a common understanding of human dignity, and I see that part of the inflation of human rights had happened because of this idea of human dignity as autonomy instead of an inherent human dignity that everyone shares by the fact of being a human being. So I don’t know if you have any thoughts about that. It’s like going back to a minimum would require to come to a common understanding of what human dignity is or the foundations of human rights, or we can still continue with not agreeing what the foundations are.

Mary Ann G.:

I love that question, and you may be disappointed in my answer, but here’s what I’d think. The Universal Declaration says that dignity is the foundation of all human rights. I think dignity has been so susceptible to deconstruction. Everybody has a concept of human dignity that would support a version of human rights. I think we really can’t do better than what Jacques Maritain and the other philosophers of multicultural group, many religions and philosophies. Back in 1947, they looked at the question of whether there can be foundations of human rights. I think a lot of doubt has been cast on whether dignity can do the work. And so the conclusion I’m agreeing with the conclusion of Maritain and others, they said they thought this is a hypothesis, but their hypothesis is that foundations for the concept of a small core of fundamental rights could be found in most of the world’s cultural, philosophical, and religious systems.

But they won’t be the same foundations, Maritain said, for practical purposes. That’s all right. So I had another slide that I spared you all. This is my own original artwork here. The other slide that I had was a picture of a table, a platform with a lot of legs. And I think that represents the vision of the UNESCO philosophers. You have a platform that will support the fragile concept of human rights, and it’s got sturdy legs, but not just one.

Bill:

Okay. Excuse me. Next. Anybody else? Okay.

Hannah:

Hi, my name is Hannah. I am a hopeful, a PhD candidate and a professor. Words are my business and I would like to be a good businesswoman. And I was wondering if I could get your thoughts. I heard perhaps some of this thought implicitly in a part of your talk, and I wanted to hear your thoughts further on it. I’ve been here in DC in the political and intellectual milieu for about four years now, and it’s my impression and only an impression, but an informed one in my opinion that the abuse of words and misleading words coming from the milieu, which I love and have chosen as the work of my life, Catholic intellectual life, that the abuse of these words. I mean, to give an example on the slide, this first things article, which the sad thing is people do judge books by their covers.

And so the impression given by the title against human rights is that a Catholic position, a first things position is to be against human rights. And I’m thinking in a stream, in a tradition, I’m thinking Henri de Lubac’s drama of atheist humanism, which is a problem in the world, begins in the church and many of the sins that we see outside the church our first hours. And so what I hear, and so I’m asking for myself in this project of renewing this language of human rights. Our words really matter. Christ is the word of God who reveals that God is love. Our words are measured by the reality that his words create. Did I hear that implied in some of your talk about the use of words, this rights talk, and how can myself and perhaps others here, I’m sure many others here, how is it that we can participate in this renewal of the human rights project with the correct use of words and the impressions they create in people who are looking for it, who are looking for truth?

Mary Ann G.:

You know what I would love to ask you to read an essay by Vaclav Havel, a great wordsmith, human rights activist and poet, Czech president. He wrote an essay a long time ago in the New York review of books called something like, The Tyranny of Words. And here he is, the poets were the first to notice that there was going to be a problem with language in the human rights project, Czeslaw Milosz, the Nobel Prize winning Polish poet, Havel, the playwright in Czechoslovakia, they said things like, “Words can be inspiring and powerful. They also can be lethal errors.” I mean, what it all was pointing to is there’s got to be a philosophical grounding behind the language. The language can’t be separated from the concepts.

I do want to say about against human rights and First Things, that was none of the positions expressed by First Things are Catholic positions only. That is the statement that we worked on was multi-religious. And when the editor first thing speaks in his editorial capacity, he speaks foreign interfaith project. But part of the problem with human rights is that the words by themselves have been pulled up by the roots. And so you have one of the reasons why there’s a problem with dignity as foundational as the good words get snapped up by people without such good motives. And you have dignity in dying as a slogan for helping people to shovel off when they get old and sick.

Bill:

Or forcing them to do it before they’re ready.

Mary Ann G.:

Yeah. Right.

Bill:

Yeah. Okay. Who? Yeah. Good.

Speaker 5:

Ambassador, I wanted to get your take on two problems I see as a human rights practitioner myself. The first is a methodological problem. And I wonder how you in the future, if there is this renewal of human rights, how we would even know the renewal was occurring? Other than just sort of general sentiment of what’s happening in a culture around the world. How would one measure whether or not appreciation for human rights has actually increased? And how would we know it was this sort of right type of human rights as opposed to ones that we’ve seen in the last few decades that are manipulated?

The second is a communication problem, and that is having served as a diplomat yourself, how does one effectively communicate the importance of human rights when your interlocutor across the table could be an abuser himself. It’s not a very effective, when you’re sort of accusing someone across the table of a gross human rights violation. I don’t think that’s a recipe for productive dialogue necessarily. And when you have a laundry list of other agenda items that don’t have to do with human rights, how do you face that communication problem? Thanks.

Mary Ann G.:

Well as to your first question about how would we know if a change had started? I think we only know those things with hindsight, right? I mean, after a period of time, you look back on a period when there’s been big talk about human rights and terrible things happened, 1990s, whatever was going on there wasn’t working. How did those astonishing events take place in the 1980s? I think historians look back and political theorists look back and they try to figure out not an exact science. And as to your second question, well of course that’s the great question for foreign policy for every country, and it’s a question that is particularly acute for the United States because the United States does have so much leverage.

But as you know, when I mentioned that the diplomatic toolbox is very large, there are so many tools in that box from sometimes persuasion works. I got your very question of the hypothetical interlocutor. Lots of times when you’re just going to get a cold hard stare across the table. But the tools in the toolbox are many and subtle. And so I think that the thrust of our 2020 report is diplomats have the tools. They know how to use them, they know how to adjust them to different circumstances. Why aren’t they using them? Why the silence? But whoever figures out the answer to that question should get a big prize. I’m not going to say Nobel, but…

Bill:

Say who else? Anybody else?

Speaker 6:

Hi, Mary Ann. Good to see you again.

Mary Ann G.:

Oh, hi.

Speaker 6:

I wonder if you could just reflect a little on the connection between human rights and democracy, because the trajectory you’re describing of an advancement of human rights from the mid-20th century to the end of the 20th century, and then this decline of human rights in the 21st is the same exact. If we mapped it out on a graph, it would be the same exact trajectory as the expansion of democracy from the end of the second world war, with the end of colonialism, all these new democracies arise, they continue to arise with the end of the Soviet Union. And then this democratic decline that we’re in now, no new democracies since 2011, and for the first time Democratic backsliding in existing established democracies including the United States. So I wonder if you have any reflections on those connections between those two dramatic backsliding?

Mary Ann G.:

Yeah, beautiful question. Thank you. Yeah. There’s a reason why in that short list of interdependent articles, the Universal Declaration has a right to democratic participation in government. And we should, when we talk about human rights, we should always combine it with talking about democracy. Because where do, I’m quoting Eleanor Roosevelt again, “Where do human rights begin?” She says, “They begin in the small places,” and it’s in the small places, subsidiarity where the democratic processes of bargaining, education, persuasion, and voting take place. And that’s where you have the opportunity to win over your fellow citizens with the strength of your argument. And if you don’t win them over, if you lose, you can vote and vote another time.

And this is one of the big factors that has contributed to the decline of faith in human rights is you have higher level decision makers prematurely closing off that process. And there’s good arguments to be made that if the courts thinking about the European Court of Human Rights, but also on occasion our own Supreme Court, if they had the Democratic process work, that maybe adjust and sensible acceptable solution to many of our problems would’ve been worked out at that level. It’s a wonderful question and there’s so much more to say about it. Bless you for asking it.

Bill:

Okay. I think this will be the final question.

Speaker 7:

Hello. I would like to have your thoughts on the use of modern technology, which is providing even more sophisticated and powerful tools to certain organizations, governments, to actually trample on the rights of we, the people. I’m thinking, think what they did to us during COVID. Think what they’re doing right now in Western Europe, UK, where you can be arrested for saying the wrong word on social media, talk control with AI and so forth. Thank you.

Mary Ann G.:

Well, you’ve put your finger on the fact that new challenges are always coming along. Challenges that we couldn’t have imagined in 1948, and I can’t say much more to you than we said in our report, which was to notice this as a new challenge and one that really needs to be taken seriously. And I thank you for raising the question, and I wish I could say more about it.

Bill:

Please join me in thanking Professor Glendon.

Mary Ann G.:

Thank you.

Bill:

I would just say just on the last question, we did have a special bioethics lecture about AI, about, I don’t know, a month ago, which is up on the IHE website. So now join us for reception. Thank you.

Genevieve Wood:

Welcome to the Heritage Foundation. I’m Genevieve Wood and I’m delighted to personally welcome you today. Whether you came from across the street or across the globe, we’re glad you’re here. At Heritage, we believe ideas shape the future and that you have a role to play in that. That’s why we host events on the biggest challenges and opportunities facing our country. These events are spaces for real conversation, bold ideas, and principled solutions. No matter if you’re a seasoned policy expert, a passionate advocate, or simply just curious about the issues that shape our society, you’re welcome here. So pull up a seat, ask questions, engage with us and be part of something bigger than politics. The fight for the soul of our nation. Thanks again for joining us and please enjoy the program.

Speaker 2:

Please welcome John Malcolm, Vice President of the Heritage Foundation’s Institute for Constitutional Government.

John Malcolm:

Good afternoon and welcome everybody to the Heritage Foundation. We are delighted to be co-hosting this event with the Catholic University Center for the Constitution and Catholic Intellectual Tradition. So last year in Loper-Brite versus Raimondo, the Supreme Court overturned the Chevron Doctrine and said that once more it will be up to courts to interpret vague and ambiguous statutes, not to defer to the interpretations offered by executive branch agencies that are charged with implementing those statutes. In the last several years, the court has on various occasions invoked what it calls the Major Questions Doctrine, which to paraphrase Justice Antonia Scalia might as well have been called the Congress does not hide elephants in mouse holes doctrine, the court has demanded that Congress be explicit when it wants to delegate authority to executive branch agencies to decide issues of “vast economic and political significance.” So what is the status of the Major Questions Doctrine and what role is it likely to play in future cases now that the Chevron Doctrine is gone?

We have four distinguished scholars who are here to address this issue and at this time I would invite you all to the stage. So first you’re going to hear from my colleague Paul Larkin, who was the senior legal fellow here at Heritage in the Mies Center. A graduate of Stanford Law School, Paul clerked for Judge Robert Bork on the D.C. circuit. He’s also served in the Senate as Council to the Senate Judiciary Committee. He served in the Justice Department and the Criminal Division’s Organized Crime and Racketeering Section and also in the Solicitor General’s Office where he argued 27 cases before the US Supreme Court.

Then you’ll hear from Michael Rappaport. Michael is the Hugh and Hazel Darling Foundation professor of law and director of the Center for the Study of Constitutional Originalism at the University of San Diego Law School. A graduate of Yale Law School, Michael clarked for Judge Dolores Slobiter on the 3rd Circuit and then worked in the Office of Legal Counsel at the Department of Justice. Then you will hear from Chad Squattery. Chad is a professor at the Columbus School of Law at Catholic University. A graduate of the University of Virginia Law School, Chad clerked for Judge D. Brooks Smith on the 3rd Circuit and previously worked as a special assistant to Secretary Eugene Scalia at the Department of Labor. And finally you’ll hear from Natalie Schmidt, who also teaches at Catholic Law School. A graduate of Harvard Law School, she too clerked on the 3rd Circuit for Judge Peter Phipps. With that Paul, microphone is yours.

Paul Larkin:

I want to thank you for coming or joining us online. We always appreciate when people are willing to take the time out of their day to listen to issues that we are going to debate and discuss here at Heritage. So please accept my thanks for coming here. There are two different doctrines that we’re going to be discussing today. One is the so-called Chevron Doctrine and the other is the so-called Major Questions Doctrine. Each of them dealt with issues of statutory interpretation, but they looked at different aspects of that whole problem.

Chevron ultimately was more about who decides. Congress, the agency, and the courts, whereas the Major Questions Doctrine is really directed more at the courts and to some extent the agencies than it is to Congress. It is directed to Congress in part, I suppose, by telling Congress how it has to legislate in order to avoid the courts getting wrong what Congress intended, but it really is a direction for the courts.

What Chevron said was this, if Congress says something clearly, that’s the law, but if it’s ambiguous or unclear, the agency is entitled to adopt a reasonable interpretation of whether the statutory term is and the courts under the Chevron doctrine have to accept a reasonable interpretation of an ambiguous or unclear statute.

The Major Questions Doctrine is different. It doesn’t address who as much as it addresses what is at issue. What the doctrine tries to get at is essentially a problem of language and language as used not just in everyday conversation but also in the law. It talks about the same problem that Wittgenstein talked about in philosophical investigations. He recognized that terms like game have a core meaning but also have meanings at the periphery. For example, everyone would understand that baseball is a game including the baseball All-Star game, but is batting practice a game generally or is it a game if two people compete to see who can hit more home runs and batting practice?

What about Pepper where there are three or four guys who just hit the ball back to who is ever throwing it? Is that a game? What about the World Series where the White Sox played but it was rigged? Can it be a game if the outcome is rigged or is it always a game simply because you have two opposing people? Well, what about soccer? Soccer is generally recognized… By soccer, I mean the term the Americans use, the world calls it football perhaps rightly so, but is soccer or football a game? Of course. What about a soccer player who’s training and just learns to bounce the ball off his knee and wants to see if he can do that and go back and forth? Is that a game if he’s only playing against himself or whatever record he had? But the Major Questions Doctrine says is simply this because we’re going to have words by necessity in statutes and words will not be clear and unchangeable like crystals.

We are not going to treat these words as if they’re duffel bags and you can throw any meaning you want into it and stretch it as much as you can because the duffel bags material is elastic. If it’s a major question, now we’re going to expect that Congress probably had something in mind and that sort of interpretation is something that is going to survive going forward because it existed long before Chevron came into being and adopted its multi-part analysis. Let me give you a couple of examples. In McBoyle versus United States, the court had to deal with the question of whether an airplane was a motorized vehicle under a statute that said any conveyance powered by an engine that does not move along rails is a motor vehicle. Well, is an airplane a motor vehicle? Holmes said no. He said yes, you can perhaps stretch the term to include an airplane because it has a motor and it doesn’t run along rails, but the average interpretation in everyday discourse is that it only applies to cars, trucks, and the like.

What about the famous fish case, Yates versus United States? Is a fish which was said to be too small for someone to catch a tangible object for purposes of the Sarbanes Oxley Act, which dealt with people trying to use different types of computers and the like to finagle numbers and the Supreme Court said no, they weren’t getting at fish because you don’t store financial information in fish. Well, what about NFID versus Department of Labor, the case not too long ago where the question was can the Department of Labor interpret the Occupational Safety and Health Act to require vaccinations?

And the Supreme Court said no, it’s not like safety equipment. And yes, the statute does have the word health in there, but every state in the nation has a vaccination requirement of some type for children to go to school and in that they use the word vaccination, inoculation, or immunization. They don’t use those in the Occupational Safety and Health Act. They were talking about external protections. So the Major Questions Doctrine is going to continue because it existed prior to the Chevron Doctrine and serves a valuable purpose in trying to ensure that words are given their average everyday meaning. Thank you.

Michael Rappaport:

Well, thank you so much for organizing this and inviting me. I’m delighted today to talk about the Major Questions Doctrine and a little bit about Chevron. Since I have only limited time, I’m going to confine my initial remarks to three main points. First, my opposition to the substantive canon interpretation of the Major Questions Doctrine, but my qualified support for the linguistic version of the doctrine. Second, why I believe the substantive canon approach probably does not apply to foreign affairs and foreign commerce, but the linguistic version probably does.

And then third, how we should evaluate, I’ll call it a quasi originalist court employing a substantive canon version of the Major Questions Doctrine. Well, let me start with my view of the Major Questions Doctrine, which is somewhat mixed and nuanced. In general, I oppose a strong version of the Major Questions Doctrine that views it as a substantive canon of interpretation. Under an originalist approach, judges are not free to make up substantive canons of interpretation.

Doing that’s just a weaker form of living constitutionalism. Nor can the Major Questions Doctrine be easily justified as a means of enforcing the non-delegation doctrine. Justifying it as a means of enforcing the non-delegation doctrine requires that the court actually articulate the original meaning of the non-delegation doctrine. Otherwise, there’s no way to know whether one is actually or not enforcing the non-delegation doctrine. But the court has not articulated the non-delegation doctrine and seems far away from doing so. For example, the court has not discussed whether the non-delegation doctrine applies to all laws or simply those that impact private rights, nor is the court supplied a test for determining how much discretion can be given to the executive.

On the other hand, I should say I’m sympathetic to the underlying motivations that have led the court to the major questions. Doctrine agencies have argued that statutes that were never intended to allow certain regulations in fact permitted such regulations based on aggressive interpretations of language. And this was especially problematic in a world where Chevron deference conveyed additional powers on the agencies, but one does not need the substantive canon interpretation of the Major Questions Doctrine to address these concerns. Instead, it’s sufficient to simply apply originalist statutory interpretation. And one important aspect of originalist statutory interpretation is, as Paul said, the canon that Congress does not hide elephants in mouse holes.

One does not need a special doctrine for this canon. It’s simply an aspect of how people, especially in careful written documents, use language. Goes back at least to the founders and continues today. And this canon plus other originalist interpretive rules such as Loper-Bright’s elimination of Chevron does much to constrain overly aggressive exercises of agency powers. My position here is similar to the linguistic version of the Major Questions Doctrine as articulated by Justice Barrett, although I should note I disagree with Barrett on some things, but I think it’s even better to dispense with having a separate Major Questions Doctrine and simply decide cases based on the original meaning. Okay, well, a second question that arises is especially given the tariff case, maybe you’ve heard about it, is whether the Major Questions Doctrine applies to foreign affairs or foreign commerce.

Now in my view, the substantive canon approach probably does not apply to foreign matters, but the linguistic version probably does. So let’s start with the substantive canon version of the Major Questions Doctrine that uses the doctrine to enforce the non-delegation doctrine. Now in my view, this version is unlikely to apply to at least some matters of foreign affairs and foreign commerce. The reason is that I believe that there’s a two-tiered theory of the non-delegation doctrine. The non-delegation applies strongly to private rights in the domestic sphere, but less so or maybe not at all in the foreign sphere.

And therefore the Major Questions Doctrine would not fully apply there as well under the substantive approach. But the argument is different as to the linguistic version. Some people argue that the Major Questions Doctrine should not apply as to foreign matters in the linguistic version because Congress has delegated broadly to the president in this area. Thus, one should not be reluctant to find delegations of major questions. But this argument has some problems. First, Congress is not only delegated significantly as to foreign matters, but also as to domestic matters, right? Hence, this thing we call the administrative state, but we still apply the linguistic version of the Major Questions Doctrine to the domestic area.

Second, the reason that the Major Questions Doctrine applies in the domestic area, even though there have been broad delegations, is that the linguistic version does not really turn on whether there have been major delegations. Instead, it turns, at least in my view, on whether Congress has delegated elephants in mouse holes in that area and Congress has not delegated elephants in mouse holes in the domestic area. But similarly, it seems likely that Congress has not delegated elephants in mouse holes in the foreign matters as well in the foreign affairs area. So I would say that the linguistic version of the Major Questions Doctrine probably applies as to foreign matters. Of course, whether the executive is using a mouse hole in a specific case such as the tariffs case is a separate question. Finally, let me conclude by explaining how I think about the way the Major Questions Doctrine is being applied by the Supreme Court and my view is that the court is using a politically convenient but jurisprudentially problematic shortcut to enforcing the non-delegation doctrine that will sometimes lead it astray.

So in short, the court’s approach is a mixed bag. I believe the court using the Major Questions Doctrine as a substantive canon to enforce the non-delegation doctrine since it’s not willing to enforce the non-delegation doctrine directly, right? Continues to approve delegations case after case, but the court is not even willing to do what is necessary to properly use the Major Questions Doctrine to enforce the non-delegation doctrine. To properly apply at least under an originalist approach the substantive canon of the Major Questions Doctrine as a means of enforcing the non-delegation doctrine, one would have to do several things. One would have to define the non-delegation doctrine based on the original meaning. Then one would need to say that the non-delegation doctrine would be violated if the statute actually authorized the challenged agency interpretation.

And then one could say that the statute should not be interpreted to confer such broad authority. Instead, though the court uses the Major Question Doctrine to avoid all of that, it can invalidate the agency action without having to tell Congress that it violated the Constitution or might’ve violated the Constitution. Instead, it can tell Congress that all it needs to do to allow the delegation is to more clearly authorize it. Don’t blame us, it’s on you.

The court’s approach has political advantages for the court, but it might lead to mistakes as a method for enforcing the non-delegation doctrine. The Major Questions Doctrine might mistakenly be applied to laws that would not violate the non-delegation doctrine or it might mistakenly not be applied for laws that would violate the non-delegation doctrine. So one way to think about this is that the court is unwilling or unable on political grounds to pursue a full originalist approach. It pursues a politically feasible approach instead. Now this approach is animated by some originalist concerns and so appears to move the law in an originalist direction. Still, it’ll sometimes reach results that cannot be justified by originalism. One might view this imperfect situation optimistically as the glass being half full. Under this view, despite the imperfections, it’s better than the alternative of the court not applying the Major Questions Doctrine and not applying the original meaning of the non-delegation doctrine, but we really can’t be sure that that is the case. Thank you.

Chad Squattery:

All right, so a lot of interesting discussions so far from my co-panelists. I look forward to our discussion later on. From my remarks, I’m going to be sharing some ideas that I have coming in a forthcoming essay in the Pepperdine Law Review Annual Volume. That essay is entitled Finding the Major Questions Doctrine. And the idea behind that title is that to suggest that the Major Questions Doctrine might be in the process of being found by judges rather than being created by judges. And if that’s right, it has some important payoffs for what we might expect to find about the Major Questions Doctrine after Loper-Bright. So I think to have an idea about what the Major Questions Doctrine is going to look like in the future, we should consider about what we have found about the Major Questions Doctrine so far in the past. So the origins of the Major Questions Doctrine are somewhat debated.

Some have argued that something like the Major Questions Doctrine can be traced back to the late-1800s, perhaps even earlier in principles of agency law. Others have contended that the Major Questions Doctrine was more recently created as an exception to the Chevron Doctrine and some of those later camp people that hold that later view suggest that, well, because the Major Questions Doctrine was created as an exception to Chevron, then perhaps the Major Questions Doctrine should die along with the death of Chevron. And in arguing as much, these scholars have essentially contended that the Major Questions Doctrine is a limit on a form of legislative authority rule-making authority. Now in my essay, I disagree with that, and in doing so, I not only suggest that it’s a mistake to suggest that the Major Questions Doctrine should be limited to the old Chevron regime. I actually suggest that it might be a bigger mistake.

It might be a mistake to suggest that the Major Questions Doctrine was created at all. It could be the case that the doctrine is in the process of being found. And so while yes, the doctrine has only been found in certain areas to date and might be found in other areas in the future. So my essay is split into three parts and I’ll just kind of briefly go through those three parts in my remarks today. Part one, I discussed the idea of the major Questions, Doctrine being found. Part two discusses what has been found to date and part three discusses about what we might find in the future. So part one, various scholars including Professor Steve Sachs, for example, have done tremendous work on what it means to find law rather than to create law. As Sachs notes, it’s common today to act like finding the law is something of a fairy tale.

The idea being that, well, certainly it’s either the legislatures or the judges that are making the law. So it’s nonsensical to suggest that the law is simply found. But as Sachs convincingly argues, he says, we follow some things made by nobody all the time. For example, people routinely conform their conduct to familiar norms of fashion, adequate, or natural language, even though nobody is seen as having created those norms. So yes, a schoolteacher might say that a student has violated a rule of grammar or a fashion magazine might that my tie is in or out of style. But in doing so, the school teacher hasn’t created that rule of grammar and the fashion magazine person hasn’t created rules of fashion. They’re simply finding those rules and implying it to my grammar or my tie so to speak. So my essay therefore assumes that law like these things like fashion and grammar can indeed be found.

So working within the assumption, I turn to a more media point, whether the Major Questions Doctrine, a principle of interpretive law, whether that can be found as well. For those familiar with some of the mainstream critiques of the Major Questions Doctrine, this might sound absurd, right? After all, we have heard some rather, if you’re familiar with the academic literature, there’s some rather hyperbolic claims that the Major Questions Doctrine was allegedly created by conservative judges to get at administrative agencies or what have you. But if we move beyond hyperbole and look at what the court has actually said to date, it seems that the court itself has acted as if the Major Questions Doctrine has been found rather than created. To wit and as some of my co-panelists have flagged, there is essentially two camps on the current Supreme Court about what the Major Questions Doctrine is, and both camps have said things to suggest that the doctrine is in the process of being found.

So start with Justice Barrett who argues that the doctrine is a linguistic canon. According to her view, similar to how a babysitter might not give major authority without being quite clear, Congress does not give major authority without being quite clear. Now note how in making that argument, Justice Barrett is not purporting to create how babysitters or how Congress speaks. She’s simply purporting to say there’s something out in the world how babysitters in Congress speaks. I’m finding that and I’m applying it here and I’m calling it the Major Questions Doctrine. So that’s one camp. The second camp is the Justice Gorsuch Camp. I put Gorsuch and Alito in this camp together. They argue that the Major Questions Doctrine is a substantive canon that enforces some sort of constitutional value, namely the non-delegation principle. And West Virginia Justice Gorsuch wrote that some version of the doctrine can be traced back to at least 1897 when the Supreme Court confronted a case involving Interstate Commerce Commission, which has been referred to as the federal government’s first modern administrative regulatory agency.

So then with time and in particular after the explosive growth of the administrative state in 1970, the Major Questions Doctrine began to take on more importance. So when Justice Gorsuch’s telling the animating idea seems to be that while something like the doctrine first arose alongside the initial rise of the administrative state, and then as the administrative state began to grow and unfold, the Major Questions Doctrine began to further emerge as an important aspect relevant to the interaction between courts and these new things called administrative agencies. So on this telling, one could argue that the doctrine was not necessarily created courts, but instead could be understood as having been slowly developed or discovered by courts as new legal circumstances, the rise of the modern administrative state, as that came into being.

More recently, the court in general has acted because those two camps I just talked about were concurrences from single justices or not on behalf of the full court, but the full court has acted as if the doctrine has been found as well in Nebraska, which was the student loans case. The dissent critiqued the court for a made up Major Questions Doctrine saying you guys created this.

And in response, the court majority stated said, while the major questions label may be relatively recent, it refers to an identifiable body of law that has developed over a series of significant cases spanning decades. So one might put that point more simply by explaining that the doctrine has not been made up, but instead in the process of being found. So part two, what has been found to date? Well, except for perhaps an exception or two, the Major Questions Doctrine has no about been found, applied in the rulemaking context where an administrative agencies make rules and regulations. And some scholars have argued that the Major Questions Doctrine should be restricted to that context. In particular, they argue that the Major Questions Doctrine can only be reasonably applied to agency actions that are legislative in character, right? But as I argue and lots of others, although the Major Questions Doctrine has applied to agency action that seems legislative, rulemaking, the agency action is actually not legislative. Right?

Rulemakings by administrative agencies must be exercises of the federal executive power. If they’re not, if they are exercises of legislative power, then we’ve run into a problem with the Article One Vesting Clause, which places that legislative power in Congress, not executive branch administrative agency. So as Justice Scalia explained, although agencies make rules and conduct and make rules and also adjudicate that might look like legislative or judicial power, they’re actually both forms of executive power. So when viewed in that light, it becomes clear that the Major Questions Doctrine has always applied to purported exercises of executive power. So to say that it needs to be restricted to legislative power just misunderstands how it’s been applied in the past.

I will skip ahead to part three for time, where the Major Questions Doctrine might be found in the future. So although the Major Questions Doctrine has been primarily observed in relation to a particular form of executive power, the rulemaking context, future courts might find that the Major Questions Doctrine applies in other exercise of executive power as well. And there are at least three other types of executive power. Those are adjudications decisions to adjudicate and then enforcement actions. And because we’re short on time, I’ll just focus on one of those, the adjudicative context, I’ll explain why, although we might not have found the Major Questions Doctrine in the adjudication context yet we might expect courts to find it in the future. So what are adjudications? Although adjudications might look judicial, they are no more judicial than rule-makings are legislative. They are instead exercises of executive power, or again, they must be, otherwise we’re going to have a constitutional problem.

Now, under current doctrine, specifically a case called Chenery II, agencies can create new policy through adjudications similar to how agencies can create new policies through rule-makings. That’s a controversial decision, but that’s the lay of the land at the moment. I think it would be natural then for the Major Questions Doctrine to apply to policy created through adjudications, just like the Major Questions Doctrine applies to policy created through rule-makings.

One potential difference to flag, however, is that in the adjudicative context, a policy’s majorness should be considered on an aggregate basis. So that means court should review the majorness of an agency adjudication. They should assume that, okay, well, this policy that the agency’s using in this adjudication, it will apply similarly to similarly situated people and other adjudications in the future. Because if you just zoom in on one adjudication of one business owner, it might not seem major, but if you assume the agency’s going to treat all of those similar business owners the same, you can see how the majorness can kind of stack up.

And indeed that is kind of similar to how the court already considers majorness in the rule-making context. In West Virginia, for example, there was only one party who the court ruled to have standing officially. That was the state of West Virginia, but the court nonetheless considered majorness on a national basis, not just limiting it to the state of West Virginia. So in short, it could be the case that the Major Questions Doctrine is in the process of being found. Indeed, that is how the Supreme Court seems to have talked about the doctrine to date. And yes, the Major Questions Doctrine might’ve only been found so far in the rule-making context. That is just one type of an exercise of executive power. And because the Major Questions Doctrine is a limit on executive power, one that ensures that the President does not overstep the kind of limited law-making process assigned to him in Article I, section VII, in their recommendations clause, we would expect courts to begin finding the Major Questions Doctrine and other exercises of executive power as well in the future, and that includes the adjudication context. Thanks.

Speaker 7:

Well, thank you to our distinguished panelists for sharing their opening remarks. And on behalf of the Center for the Constitution and the Catholic Intellectual Tradition, I would just like to thank Heritage for hosting this event and co-sponsoring it with us. I will now moderate a discussion between our panelists and give them a chance to respond to each other’s remarks. But I would like to start by talking about the title of this event and the intersection between Chevron and the Major Questions Doctrine. And as some scholars have discussed, and as Chad mentioned as well, there is a version of the Major Questions Doctrine that is derived from or said to derive from certain cases surrounding the Chevron doctrine cases like Brown and Williamson or King V. Burwell as kind of a gateway to determining whether the Chevron doctrine applied to that agency’s interpretation. So the Major Questions Doctrine as kind of an on-off switch for Chevron.

In the wake of Loper-Brite then, if we no longer have a Chevron and no longer have a need for this on-off switch, the argument goes that then the Major Questions Doctrine goes with it. However, we have now seen it apply in multiple scenarios that are not necessarily this Chevron switch, particularly in West Virginia versus EPA, the OSHA case that was discussed as well. And so the question I would like to give to all of you, if any of you would like to take it, if this Major Questions Doctrine continues to exist after Loper-Brite, is it really the same Major Questions Doctrine that was being applied in those Chevron cases? Has it transformed in some way? And if it is something different, then perhaps maybe we talk about where it is coming from. If we can’t kind of pull on these Chevron cases like King V. Burwell or Brown V. Williamson.

John Malcolm:

I can start.

Speaker 7:

Perfect.

John Malcolm:

I think the Major Questions Doctrine will always continue, at least in the linguistic form that Justice Barrett talked about and that my two colleagues had mentioned. Because what Chevron did was essentially give a lot of decision-making authority from courts to agencies, and now Loper-Brite gave that back to the courts. But what the courts are deciding what a statute means, they’re still going to take into account what the agency says. Why? Because they’re going to look and realize that agencies become experts in making statutes work and they’re going to treat their interpretations with respect.

If you have a question of evidence law, the court’s going to treat what Wigmore said with respect. Contract law, they’re going to treat Williston or Corbin with respect, so they’ll treat the agency with respect. They’ll keep the final decision-making authority in the hands of people who wear black robes. But the linguistic version of the doctrine certainly is going to come into play because agencies, either because they’re being pushed by the political people to expand an interpretation of a statute or because they’re trying from the other direction to expand their own empires by having more that they can regulate are going to want to push the edges of the terms in a statute. And the linguistic version of it is clearly going to continue to apply because the courts are going to say some interpretations push terms too far.

Michael Rappaport:

So back before Chevron was overruled, Cass Sunstein wrote an article, said “There are two versions of the Major Question Doctrine,” and now I get to say something I don’t often say. I agree entirely with Cass Sunstein. So there was a version that said, oh, when certain major questions are involved, we would not apply Chevron. Well, since Chevron is gone, that version is gone as well, although Chevron may be gone, but still the question that whether Congress has delegated deference to the agency is still there to some extent. And so maybe that sliver of the version of the Chevron version of the doctrine still exists, but the other version of the doctrine which was not tied to Chevron, which is just should we conclude that Congress gave this broad authority to the agency apart from any Chevron deference? I think that continues and that’s what we are going to continue to see. And so that’s where the action is.

Chad Squattery:

Yeah, I think as a doctrinal matter, the Major Questions Doctrine broke away from the Chevron framework before West Virginia or maybe in West Virginia, but definitely before Loper-Brite. So the Major Questions Doctrine was its own freestanding thing before a Loper-Brite finally put Chevron out of its misery.

I will say that it seems that not to put words in my co-panelist’s mouth, it seems like there’s more support for the linguistic canon of the doctrine than the substantive canon of the doctrine. I’m on record in an article I wrote in the Baylor Law Review that I defend a substantive canon version, the Justice Gorsuch version of the Major Questions Doctrine, though I have a kind of tweak to it though I make, and I do so because I think the linguistic version in particular has a problem and it uses this babysitter-type example and says, how would the parent talk to the babysitter? But then elsewhere, Justice Barrett says, well, context matters. And if the babysitter is talking to another parent who’s the babysitter or a grandparent who’s a babysitter, then that context will suggest that babysitter who is a parent or a grandparent, that babysitter we know has more authority than another babysitter who’s like a teenager something.

And that’s a situation we find ourselves in the federal lawmaking process. Congress doesn’t legislate alone. Congress has to legislate and concert with the president. Now, of course, Congress can seek to override a presidential veto, but if you do that, you’re going to have to change the legislative text in order to have a veto-proof majority, which you’re going to have to kind of appease the fringes on both sides of the aisle. So what does that mean is that I think the president, knowing that the president can exert this influence constitutionally over the lawmaking process, the president is going to use that power to routinely get major authority for his administrative agencies that exercise executive power on his behalf. Sometimes the president won’t win and won’t get the major authority, but sometimes the president will win and will get the major authority. So I don’t think we can get there as a linguistic version.

I do think you can get there as a substantive canon version, however, because the substantive canon version says how are laws made? They’re made through a special process outlined in the Constitution that includes the Congress and the President. So the best way to look at it’s to look at what was the political bargain struck there and then see if the power is held within there because otherwise you are kind of disrespecting the constitutional process of making a law. So I think for it to survive, I think it has to be a substantive canon version rather than a linguistic version.

Speaker 7:

If you wanted to.

Michael Rappaport:

Well, there’s a lot there. I think most of it I disagree with, but so-

John Malcolm:

This is the John, you ignorant slut part of the discussion.

Michael Rappaport:

Chad. I guess I think that maybe the analogy with the babysitter question is… So you imagine the parent saying to the babysitter, okay, so this is what I want you to do. Are you okay with that? Any questions or concerns about that? The fact that the parent might seek to get the approval, or at least… I’ll just call it the approval of the babysitter doesn’t change the fact as Justice Barrett said that there would be limited authority just given the babysitter’s role. So the fact that the president is going to be enforcing these agency statutes and has a veto, I don’t think necessarily should lead us to say, oh, okay, the language should be understood differently. So anyway, that would be my response.

John Malcolm:

I mean, I think the substantive features of whatever is under discussion has to come into play. For example, Congress couldn’t pass a statute of telling an agency to promulgate regulations that enforce this, and the only direction we give to the agency is do the right thing. Maybe that would be enough if the only enforcement mechanism were civil or administrative, but they couldn’t do that if the enforcement mechanism were criminal because that clearly wouldn’t give enough notice to the public as to what is involved or to the agency as to what the right thing means. So the linguistic part will always be there in part I think because there’s a normative aspect to that as well. In some areas, the norm will come into play that you have to have fairly well-written and easily understood terms so that the average person can comply with the law without going to the who scale.

It also will come into play in other types of settings where there is a normative aspect. The president has certain authority in the case of foreign affairs that he wouldn’t have otherwise. So if Congress is setting out rules about how you punish countries for whatever the particular Congress finds doesn’t satisfy its own norms, the president being the one that can recognize foreign nations and the one that has to implement whatever other statutes are necessary, which includes protecting the nation has a certain amount of normative authority, I think, in some instances to say, no, I’m not going to punish this country even if they technically satisfy a particular statutory definition because I need them for X, Y, and Z that are in the national interest. So you’re going to have norms come into play even if you have a purely technical linguistic version of the Major Questions Doctrine. I’m just not sure that you’ll ever have one where you won’t have to look to the words of the statute to see exactly what the agency is doing and whether it’s permitted to do that.

Chad Squattery:

One follow up on that. I do think those are both excellent points by my co-panelists. I do think another problem that the linguistic version has though is that if it’s purporting to understand things as the man on the street or the ordinary congressional outsider might understand things, well, if we ask the kind of ordinary person or ordinary lawyer, does the president have influence over federal legislation? Of course the answer is yes. Obamacare, the big beautiful bill, the ordinary person understands that the president is exerting policy influence over that legislation. And I think sometimes as more conservatives, we might think that’s some hangover from the New Deal with FDR or something like that. But it’s not. The president does have constitutional authority to flex policy muscle in the lawmaking process through the recommendation clause and through the veto clause. So I do think that the ordinary man on the street already is aware of the president’s role in the lawmaking process, and perhaps us as lawyers need to kind of catch up to that.

John Malcolm:

The OSHA example, however, that was passed in the seventies I believe, and whatever influence the President would’ve had in trying to guide how rigorously an agency should regulate the type of protective equipment somebody would’ve had, I don’t think anybody in the seventies contemplated that it would authorize the Department of Labor to have an immunization program for any type, not just a pandemic, but for any type of virus or other pathogen. And so you’re going to have the problem unfortunately, that even if the president can influence how the legislation works when it’s passed, if someone 30, 40, 50 years down the road tries to expand it because of a new problem, then the president is stuck with whatever that legislation was. He can’t influence unless he tries to get it changed. And so now the courts have to try to rein in what the agencies are doing. And in that circumstance, I think there are both substantive or normative and linguistic limitations on what agencies can do independent of the authority the president may have to influence what a legislature does today.

Chad Squattery:

I agree with a bunch of what you just said, but I think you can get there through the substantive version by saying, look, President Obama, I’ve got a phone and a pen thing. I’m just going to make the statute do what I want it to do. No, you can say there’s a substantive constitutional value to require the president to go through the lawmaking process, and if you want a COVID policy, it might be a good idea. Recommend that to Congress and then get the new legislation. I don’t think you have to rely on the linguistic version to get there. I think the substantive canon does get you there.

Michael Rappaport:

I guess I would just say one thing about this substantive canon version of it. Let me put it this way. If you took away, let’s say on the Supreme Court… No, that’s a good idea. If you took away the Supreme Court’s authority to say what was unconstitutional or not, but you just gave it the authority to kind of make up, if you will, substantive canons of interpretation, maybe that’s more power. So if they don’t have to be enforcing the statutes, but they can just come up with canons of interpretation and they change over time, that’s a lot like living constitutionalism.

Yeah. If Congress can agree to override the clear statement, sure, they get the final say, but otherwise the court gets to decide what’s in the statute and therefore what’s being enforced, and I guess at the heart of it, that’s my concern. It is one thing if there’s a strong norm as Paul says, that’s out there that Congress knew about, and that we would just simply say, oh, it’s really unlikely that Congress wanted to give this criminal power to an agency when they’ve never had this kind of thing in the past. That’s one thing, but to come up with new norms, that’s another thing entirely. And that’s the gist of my concerns about the substantive canon.

Speaker 7:

Well, if I could just follow up on some great thoughts that you all put out there. It almost seems to me that we might not need a Major Questions Doctrine per se, if it really works in the way that I think various of you are describing. If the substantive canon version of the Major Questions Doctrine is really just trying to enforce the non-delegation doctrine, we could just enforce the non-delegation doctrine and solve delegation problems through that doctrine instead, if it’s doing the work of a semantic or linguistic canon. Why do we need that on top of textualism or kind of ordinary tools of statutory interpretation? To use the OSHA example, if you read that statute, you might, through textualism or other methods of interpretation, similarly come to a conclusion that those words in that statute don’t mean vaccines.

That just whether or not you’re looking at it from a textualist standpoint and saying semantically, maybe those words don’t mean vaccine. They would’ve used the word vaccine or maybe venturing on a more intentionalist. I think of Justice Alito’s dissent in Bostock, for example. No one thought that that statute back then when it was passed meant this now, although he takes the mantle of textualism in that as well. So in either case, is the Major Questions Doctrine doing independent work beyond either ordinary statutory interpretation or what the non-delegation doctrine is doing?

John Malcolm:

Something similar is in the dissenting opinion by Justice Clarence Thomas dealing with the void for vagueness doctrine in criminal cases, what he said was the void for vagueness doctrine really should be just applied as a way of saying the particular activity that’s at issue here isn’t within the scope of the statute, and that seems to be a reasonable way of interpreting.

He said, in fact, that’s the way in the 19th century we construed this. We didn’t say the statute was vague because it could apply to A, B, C, and X, Y, Z. We just said X, Y and Z don’t fall under the statute and vagueness doctrine came up later. Yet that’s a reasonable way of going at it. And maybe the court have just done that from the beginning. They certainly could have done that in the NFIB versus Department of Labor case, but courts like to make up new doctrines, just like legislators like to pass new laws. I mean, we have the prongification of the law throughout constitutional law. We have over-breath as a doctrine that they created. I think that’s hard to say they found that one, that one they just made up and courts like to do that. They make things up and it becomes the doctrine of whoever made it up. People, it’s theirs. People like doing that.

Chad Squattery:

Yeah. Well, I would push back a little bit that it’s on made up, and I think Mike would know better than me, but I’m pretty sure Mike Ramsey has kind of a soft originalist defense of the Major Questions Doctrine, or at least the defense of the idea that courts can create substantive canons. I might be mistaken on that, but to the precise question from Professor Schmidt, I do think the Major Questions Doctrine is doing something slightly different. It’s asking whether Congress did delegate authority, and whether Congress can delegate authority. The latter question being the non-delegation doctrine, but I am in favor of, to the extent that the Major Questions Doctrine is a distraction from reinvigorating the non-delegation doctrine, then I think we should not pay as much attention to the distraction and turn towards what I think is the more important issue, which is reinvigorating and enforcing the non-delegation doctrine.

Michael Rappaport:

Well, on the point that Chad brings up about whether or not you can give an originalist defense of substantive canons, now that’s an interesting question in and of itself. If one goes back, and back when she was a professor, Professor Amy Coney Barrett wrote an article about this, it’s quite an interesting piece where she goes through and she says, ah, what about all these canons, these substantive canons of interpretation from the very beginning? And so if one wanted to make a defense of substantive canons, and I think Ramsey does this to an extent, one says, ah, look at these substantive canons from the beginning. This is okay, then Professor Barrett cuts back on that, but we’ll leave that part out.

So the way I read those early canons, and it is different than Professor Barrett, but they’re all things that are very plausible presumptions about what Congress would’ve intended. They either applying on the one hand pre-existing doctrines that the Congress knew about when they were enacting the statutes or things that were widely held values that people would then say, well, of course, Congress didn’t mean to interfere with international law at the time. So that’s how I read those early substantive canon cases. So if one were to then look at those canons and say, ah, can we find in the Major Questions Doctrine the same kind of status, I think you would have to show, oh, we really do have this underlying value of not giving agencies significant authority. And certainly in the 20th and 21st century, I don’t think we have that world. We have a linguistic version maybe, but I don’t think we have that wide value. In fact, how could we with the administrative state?

Speaker 7:

Well, in our last couple minutes here, I do want to talk about tariffs because it has already poked up in a couple places. So just as kind of final thoughts from each of you on whether or not you think the Major Questions Doctrine will show up in the court’s decision on tariffs, and if so, do you predict one way or another which version of the doctrine we’ll see?

Chad Squattery:

From oral argument, it definitely sounds like the Major Questions Doctrine is in play. I don’t have a prediction about what version or how it might come out, but it did seem like there was a recognition that the relevant statutory phrase, regulate importation could plausibly delegate tariff authority. But I think there might be some hesitation about finding that that was delegated because it’s major. So I do think the Major Questions Doctrine is potentially in play, but as Justice Kavanaugh noted last term, this would kind of be a new aspect, perhaps another part of the doctrine that we’re finding to apply in the foreign affairs emergency context because the court has not applied it there yet.

Michael Rappaport:

Yeah, you would think that it would be in play, given that we’ve got a arguably ambiguous statute. And if you want to interpret it to cover tariff authority and in a freewheeling way, that really is a very significant delegation of major questions to the executive. It’s a little hard to say because the justices at oral argument were a lot of times the attorneys would make a reference to the major questions and the justices would say, “Yeah, yeah, I know all about that. You don’t need to waste our time with that.”

So that makes it a little harder to predict. But I do think this point about whether or not the Major Questions Doctrine applies to in the foreign facing, I guess was the term, foreign facing legislation is a big one. I think the non-progressives on the court could easily split on that. So it makes it very hard to figure out what’s going to happen.

John Malcolm:

Think about football. When the offensive coordinator’s putting the game plan together for the following Sunday, he decides from what we know, we’ve got a hundred plays in the playbook. I’m just going to use the passing plays and I’m going to use the running plays. Okay, what about a lateral? Does that mean the lateral makes it into the game plan? Is that a running play or a passing play? The ball goes through the air to get to somebody who’s then going to run with it.

You could decide the question in that case without even reaching the Major Questions Doctrine. So I’m not sure to what extent that’s going to come into play. I mean, maybe it’s… Since you’re making a decision by a majority, if you’ve got a majority to people that say the Major Questions Doctrine applies, whichever way you want to come out on the judgment to be entered, that would be a rationale for saying the major questions does or does not apply. But you also have to look at the text of all the different statutes and see whether they answer the question in this case, and if all the statutes do is have passing plays and running plays and you’re trying to decide is a lateral in there, you’ve got a case involving an interpretation of the words. And that may be a major questions case, but only an linguistic one rather than a substantive one.

Speaker 7:

Well, with that, I’d like to thank all of you for coming and thank our distinguished panelists for joining us today.