Getting at Recess Appointments

Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection.  Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power.  President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess.  The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.

Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.

Religion and Race: The Ministerial Exception Reexamined

Ian Bartrum*

Editor's Note: This essay is the fifth in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

The ministerial exception has, at long last, arrived before the Supreme Court.  In Hosanna-Tabor, the Justices will finally consider the controversial doctrine that shields religious organizations from antidiscrimination suits brought by ministerial employees.[1]  In part because the exception guards a highly contested border between two fundamental constitutional values—equal protection and religious liberty—it has been the subject of significant discord among circuit courts.  Although lower federal courts have recognized and applied some version of the ministerial exception for almost forty years, they have diverged widely on its proper scope and substance.[2]  That is, courts have agreed neither on which jobs count as "ministerial," nor on the kinds of claims from which religious employers are "excepted."[3]  As this colloquy's other contributors make clear, Hosanna-Tabor seems better positioned to settle the former question than the latter.[4]  Nonetheless, I think the case's appearance on the Court's docket gives us occasion to revisit other controverted aspects of the ministerial exception, and that is my intention here.

Religious Freedom, Church–State Separation, and the Ministerial Exception

Thomas C. Berg*; Kimberlee Wood Colby**; Carl H. Esbeck***; Richard W. Garnett****

Editor's Note: This essay is the fourth in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

Hosanna-Tabor[1] concerns the separation of church and state, which is an often-misunderstood arrangement that is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution.  For nearly a thousand years, the tradition of Western constitutionalism—the project of protecting political freedom by marking boundaries to the power of government—has been strengthened by the principled commitment to religious liberty and church–state separation.  A community that respects both the importance of, and the distinction between, independent spheres of political and religious authority is one in which the fundamental rights of all are more secure.  A government that acknowledges this distinction acknowledges limits to its own reach.  Such a government, history shows, will more consistently protect and vindicate the liberties of both individuals and institutions.

Act III of the Ministerial Exception

Paul Horwitz^*

Editor's Note: This essay is the third in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

Introduction

Law is filled with stories without endings.  Case reports and law review articles generally conclude with the judgment on a case.  Once judgment is rendered, either by a judge or by a scholar analyzing an opinion, it is unusual for anyone to consider what happens next.[1]  In drama, a gun that appears onstage in Act I is sure to go off in Act III: the play has not ended until there is a climax; until the full narrative has reached its conclusion.[2]  In law, the curtain often draws shut abruptly at the end of Act II.

Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger

Josh Bowers*

Editor's Note: This Essay is a response to Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261 (2011).

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I applaud Adam Gershowitz and Laura Killinger for identifying and exploring an almost unconsidered problem: excessive prosecutorial caseloads.[1]  Their premise is that in many large jurisdictions, prosecutors are so overworked that they cannot adequately individualize guilty pleas, assess eligibility and need for rehabilitative programs, comply with disclosure obligations and speedy-trial rules, and (more generally) separate the legally and equitably innocent from the guilty.  Consequently, excessive prosecutorial caseloads have the capacity to burden not only district attorneys' offices but also criminal defendants.

It is no easy feat to recognize a fresh and practically important problem in a criminal justice system that—though shot-through with pathologies—has no shortage of critics on the lookout to spot them.  For that reason alone, their article is a valuable contribution to the literature.  It is all the more impressive that they chart this new territory so well.  Nevertheless, I have three principal concerns.  First, I sense that the problem is not nearly as pervasive as they take it to be.  Second, I believe that prosecutors do not so much lack the ability as the will to manage ballooning caseloads (and, if I am right, this profoundly changes the takeaway).  Third, I foresee a number of reasons—many of which the authors leave unaddressed—to worry far more about excessive public-defender caseloads than prosecutorial caseloads.

Sacrificing Quantity for Quality: Better Focusing Prosecutors’ Scarce Resources

Stephanos Bibas*

Editor's Note: This Essay is a response to Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261 (2011).

[download pdf]

Adam Gershowitz and Laura Killinger rightly explore an important problem that prosecutors face: they are spread too thin trying to prosecute too many cases.  Their thoughtful, well-written article is an important contribution to the field and usefully complements the burgeoning literature on the underfunding of criminal defense.  As they argue, prosecutorial overwork harms justice in any number of ways.  It delays cases, frustrates victims, makes it harder to spot and free innocent defendants, and impedes lowering punishments for sympathetic defendants.[1]

The root problem, however, is not so much a matter of underfunding of prosecutors’ offices as it is a matter of skewed priorities and metrics of success.  Prosecutors need not pursue every legally supportable charge.  They enjoy discretion in deciding which cases to pursue, which charges to file, and which pleas to offer and accept.  Though they have that discretionary power, too often they do not think strategically about using it.  Indeed, individual prosecutors often reactively prosecute the cases that come before them, instead of proactively setting priorities and focusing on system-wide tradeoffs.  Many offices lack hierarchies or office policies that meaningfully direct line prosecutors’ efforts.  The problem, evinced by the framing of Gershowitz and Killinger’s article, is that prosecutors and the public measure prosecutorial success mostly in terms of the number of cases filed and convictions won.  Throwing money at this problem would only pour fuel on the fire, encouraging prosecutors to widen their nets in the inexhaustible sea of potential cases.

A surer solution is to refocus prosecutors’ efforts to make the best use of inevitably limited money.  For instance, as Gershowitz and Killinger rightly point out, prosecutors pay too little attention to victims and communities, failing to solicit their input and take them seriously.[2]  We must move from worshipping quantity to prizing quality.  Prosecutors need to focus not just on what to do but also how to do it: fairly, respectfully, and effectively.

Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court’s Hands-Off Approach to Religious Doctrine

Samuel J. Levine

Editor's Note: This essay is the second in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

Introduction

The United States Supreme Court’s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court’s Religion Clause jurisprudence.  On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations.  The narrow issue at the center of the case is the "ministerial exception," a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees.  This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court’s application of the ministerial exception to the particular facts of the case.  This Essay looks at the ministerial exception through the broader prism of the Supreme Court’s "hands-off" approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

Rethinking Extraordinary Circumstances

Scott Dodson[*]

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Introduction

Normally, the entry of an unappealed final judgment ends the case forever, even if later developments undermine faith in the accuracy of the decision or the fairness of its procedural grounds.  Litigation must have an end, and a final judgment usually marks that point.

Rule 60(b), however, has long been available to provide relief from judgment to losing litigants where justice so demands.  The rule states that a court may relieve a party from final judgment "[o]n motion and just terms" under five enumerated grounds (including mistake, newly discovered evidence, fraud, voidness, and judgment satisfaction) and one catchall provision.[1]  The catchall, Rule 60(b)(6), provides that a court can relieve a party from judgment for "any other reason that justifies relief."[2]

The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

Caroline Mala Corbin

Editor's Note: This essay is the first in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a schoolteacher should be considered a minister.  Although the school teacher in this case, Cheryl Perich, began her employment as a lay teacher, she soon became a called teacher with the title "commissioned minister."  She taught a religion class four times a week and led her class in daily prayers. During the bulk of her workday, however, Perich taught math, reading, English, social studies, science, gym, art, and music to third and fourth graders.

When May a President Refuse to Defend a Statute? The Obama Administration and DOMA

Carlos A. Ball[*]

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Presidents sometimes make the controversial decision not to defend a federal statute they believe is unconstitutional.[1]  It may be tempting, when assessing the appropriateness of these decisions, to adopt one of two categorical positions: either that the President should never refuse to defend a law based on his view that it is unconstitutional, or that the President has unlimited constitutional authority to refuse to defend laws on that basis.[2]

I do not believe that either of these categorical approaches is warranted.[3]  The former view insufficiently accounts for the fact that the Executive Branch, as a co-equal branch of government, has an independent duty to “interpret and implement the Constitution.”[4]  As Professor Dawn Johnsen has explained, “Congress and the President . . . are obligated to uphold, and thus by necessity to interpret, the Constitution, and the process of constitutional interpretation benefits from the thoughtful participation of the elected representatives of the people in the public dialogue about the meaning of the Constitution.”[5]