University of Chicago Law School professor Geoffrey Stone has this jaw-droppingly incompetent analysis of Gonzales v. Carhart, the partial-birth abortion decision:
Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.
In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.
If I were grading Professor Stone’s exam paper, I would give him an “F.”
Here is a passage from page 35 of the majority opinion:
In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05–380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U. S. 22, 60 (1932) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function”).
Compare the two passages I have bolded. You can go back and add all the context you like, and it won’t change a thing. Stone got it dead wrong.
A prospective law student who summarized the case this way should be encouraged to pursue another profession. The fact that a highly respected professor at one of the best law schools in the country could produce this account is stunning.
Prof. Stone’s post is an embarrassment to the University of Chicago Law School.