Posner on oral advocacy in religion caseesri

Marty Lederman lederman.marty at gmail.com
Fri Feb 14 12:13:28 PST 2014

I agree that Posner was out of line and that it was entirely unnecessary
for him to bully ND's counsel.  Judge Hamilton was trying to get at exactly
the same questions, but he did so in a much more civil manner.

Etiquette aside, however, it's not hard to see why both of those judges
were so frustrated.  The problem with counsel's answers was not so much
that he refused to answer "yes" or "no" to the hypos -- although that was
very much a problem.  (In many of the cases he could and should have, e.g.,
answered "Yes, that would be a burden on ND, because [fill in the blank,
e.g., the consequences would be the same]" or "No, that would not be a
burden, but only because, unlike in this case, such a process would not
[fill in].")  The bigger concern was that, even when he spun out a few
sentences, counsel was entirely unable to articulate how ND could possibly
be complicit in the use of contraception under any of the hypos -- or, for
that matter, in this case.

Indeed, it is fairly remarkable, I think, at this relatively advanced stage
of the case and the public debate, that ND's lawyer still does not have any
explanation at all as to why or how Notre Dame understands itself to be
complicit -- about *what, exactly, federal law requires Notre Dame to
do*that would make it morally responsible for the use of

Most striking of all was the exchange at the end of rebuttal (about 90
minutes in).  Posner asked how it is that ND's certification of its
religious objection could possibly "enable" the insurer (Aetna) or
third-party administrator to provide contraception reimbursement (as one
district court had concluded), when it is federal law that would require
Aetna/Meritain to do so.  If I understood him correctly, counsel began to
respond that the certification form itself is not merely a notification of
objection, but also -- at least in the case of the Meritain-administered
employee plan -- constitutes (in the words of the form itself) "an
instrument under which [the Notre Dame] health plan is operated."  Now, I
still don't understand why that technical legal characterization of the
form as an instrument of ND's plan might make ND complicit in what Meritain
subsequently does.  (Take a look at the letter Meritain sends to employees
notifying them of the separate contraceptive coverage (Exhibit A of
It expressly explains that the employer has nothing to do with the

But in any event, it turns out the form, and its relationship to ND's plan,
is *not *the key to ND"s alleged complicity:  Posner interrupted to change
the hypo to eliminate that fact:  OK, he asked, what if ND merely informed
the US Government directly that it had a religious obligation, and then the
U.S. government -- not ND -- told Meritain that it had to provide the
insurance, with no amendment of any plan and no new "instrument" under the
plan?  What if there were simply a federal law that said that every
insurer/third-party provider -- not the sponsor -- must itself provide this
insurance to all plan participants?  Counsel responded that Notre Dame
would still be complicit in that case, in view of its "participation"!
What participation? asked Posner.  (Earlier, he put it this way:
"Participation by not participating?")  Apparently, believe it or not, the
immoral act would be ND's transmittal of the opt-out form to the
government.  Counsel conceded that in the exact same case, if it were Notre
Dame's employees, not Notre Dame, who sent the notification to the federal
government indicating that ND would not cover contraception, in that case
it *would* be ok for the government to require Meritain to provide the

I think it's not hard to see why Posner and Hamilton were so incredulous.
Believe me, I do not mean to question Notre Dame's sincerity here --as
always in such cases, I will bend over backward to assume good faith.
Still, I find it amazing that no one from Notre Dame has yet come forward
with any explanation at all about how and why Catholic doctrine would make
it complicit, either in this case or in Judge Posner's hypo where ND sends
the form to the government and does not amend its plan.  To be sure, I come
from outside the tradition.  But I have been endeavoring to understand
Catholic theology on complicity with evil, and I've yet to see any account
under which this would even be a close question.

Have I overlooked some sort of explanation in Notre Dame's briefs or any
other public statement?

On Fri, Feb 14, 2014 at 10:04 AM, kurt lash <kurtlash2 at gmail.com> wrote:

> I think folks should make sure they listen to the actual oral argument if
> they want to get a sense of whether the lawyer or the judge was out of line
> in this case.
> For example, at the key point where Posner strongly admonishes the lawyer
> for interrupting him, the lawyer had done no such thing.  Posner had just
> finished a lengthy statement, ending with "right?"  At that point the
> lawyer immediately began his response (which was along the lines of "no,
> that is not right") but Posner had no intention of letting him respond at
> all, and just continued talking over the lawyer.  Posner then grandiosely
> dressed down the lawyer for "interrupting."
> My students and I listen to lots of oral arguments as part of my Supreme
> Court Seminar.  This is a rather obvious example of a judge whose only
> interest is in disrupting the lawyer's argument.  Fine.  Lawyers must
> prepare for such a possibility.  It does not, however, speak well for the
> judge.
> Kurt Lash
> Guy Raymond Jones Chair in Law
> Director, Program in Constitutional Theory, History and Law
> University of Illinois College of Law
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