“I Take It You’re Not a Lawyer” — My E-Mail Exchange with Chicago Law Professor Geoffrey Stone Regarding His Mischaracterization of the Partial-Birth Abortion Decision
The payoff is near the end, when Professor Stone ends one of his e-mails to me by saying: “I take it you’re not a lawyer.”
The debate is lengthy, and I imagine that only those who have read the partial-birth abortion opinion will make their way through all of it. Here is the brief rundown for those of you who lack the patience to slog through it all; this also serves as a preview and summary for those of you who will read the whole thing.
Our debate focuses on Prof. Stone’s claim (made in this blog post) that “[i]n the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.”
As you will see from the e-mails, it’s my belief that this statement of Prof. Stone’s is flatly incorrect. The Court not only declined to give the Congressional findings “dispositive weight,” but actually gave them no weight whatsoever. Prof. Stone asserts otherwise, but continually declines my repeated requests for him to provide any language from the opinion proving me wrong.
If you are tempted to treat “evidence” and “findings” as the same thing, let me set you straight right now, with an analogy. Let’s pretend you are the defendant in a contentious lawsuit. You go to court and argue your case to a judge, complete with evidence, and make an overwhelming case that you should not be liable. The judge rules your way, but makes some sloppy and inaccurate findings along the way. His findings may be unreliable, but that doesn’t mean your evidence has no convincing force. It just means that it was presented to a bad factfinder.
Now, assume that, on appeal, the appellate court said: the judge’s findings were terrible and we don’t accept them — but we find the evidence convincing, and rule that the defendant should still win. Wouldn’t you be upset if a bystander attacked the appellate court’s ruling as wrong, because it simply rubber-stamped the trial judge’s flawed findings?
That would be a strawman argument. It would be inaccurate and unfair. And it’s what Prof. Stone has done in attacking the partial-birth abortion decision.
I wish he would admit it, but as you will see, he refuses to do so.
(By the way, when we speak of the Congressional findings, we are talking about the findings relevant to the relative safety of the abortion procedures discussed in the opinion. There are other Congressional findings, regarding the rationale for the law, but in one of our final e-mails, Prof. Stone and I agree that these are not the findings that we are discussing.)
Those of you who have actually read the opinion, tell me who you think has the better of the argument, the law professor, or the lowly blogger who may not even be a lawyer. Keep in mind that Stone used to be the Dean of the University of Chicago School of Law, which is one of the top law schools in the nation. (And if you say Prof. Stone has the better of the argument, that’s fine — but I want you to do what he fails to do, and back up your opinion with quotes from the decision.)
In a future post, I will discuss what is perhaps Stone’s more interesting contention: that the Justices in the majority ruled as they did only because they are Catholics. For now, I’m sticking to the issue of Prof. Stone’s mischaracterization of the opinion — mostly because I find it stunning, and also because it is relevant to his religious-based argument.
Here is the exchange. All emphasis is in the original e-mails:
I was surprised to read your blog post asserting:
In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.
Given that the opinion itself states:
Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings.
The opinion then explains the flaws in the Congressional findings — flaws that you implied that majority had overlooked.
You have badly mischaracterized the holding of the opinion. If a law student summarized the opinion the way you did, he would deserve a failing grade.
You owe your readers a correction.
I will assume any response you give me is for publication, unless you specifically request otherwise.
With all due respect, the Court offered no other principled basis for distinguishing its earlier decision, which was otherwise directly incompatible.
The fact that you find the majority’s arguments to be unprincipled does not entitle you to claim that the Court said the opposite of what it actually said.
You claimed that, in the majority’s view, the “critical difference was that in enacting the federal law Congress made several findings to support the legislation.”
But the majority explicitly addressed the issue of whether Congress’s findings should be given dispositive weight, and specifically rejected the argument that they should.
The Court explained that Congress’s findings were not dispositive, because the Court has an independent duty to assess the evidence. Further, the Court observed that certain of Congress’s findings were wrong — something that your post falsely implied that the majority didn’t even realize.
The Court offered another reason for reaching a different result than it had reached in Stenberg — namely, that the evidence presented to Congress and to the trial courts showed that each side had medical support for their respective positions. The Court then held that Congress’s legislation could be upheld given that medical uncertainty.
That is different from saying that the “critical difference” was Congress’s findings, as you claimed.
You might not find the Court’s argument to be “principled,” and you are entitled to that view. But you are not entitled to your own facts. Your disagreement with the Court’s ruling does not authorize you to put words in the Court’s mouth that are the direct opposite of what the Court actually said.
Prof. Stone replied:
My point, which perhaps I didn’t make clear enough, is that apart from the congressional findings, there was no principled basis for the Court’s decision and the Court would not have reached this result. Although the Court said that it would not give “dispositive” weight to the congressional findings, it ultimately relied upon those findings to justify its conclusion. Put simply, the Court upheld a limitation of a fundamental constitutional right even though it admitted that the findings on which the restriction was based were erroneous. But it remains the case that, without the congressional findings, even these justices wouldn’t have reached this result.
And I replied:
You claim that the majority would not have reached the result it did in the absence of the Congressional findings. I have already provided you a quotation from the opinion that directly contradicts your position. I challenge you to provide a quote from the opinion — any quote — to support your contention.
You can’t do it, because it’s not there.
Now, I’ll grant you this: sometimes courts are really doing something different from what they say they are doing. In such cases, it’s fair for commentators to opine on what they believe the court is really up to. But, in such cases, commentators have the obligation to make it crystal clear that they are offering their personal view of what the court is really up to, as opposed to what the court said it was doing.
You didn’t do that. You said that “in the majority’s view” the Congressional findings were the “critical difference.” This is just flatly wrong, and it’s about time you owned up to it.
Let me offer an analogy. Let’s say that I think the dissenters in Bush v. Gore were making a nakedly political decision. I take it that you would find it wholly improper for me to say:
In the dissenters’ view, the critical factor in the case was that Gore was a Democrat who advocated policies with which the dissenting justices agreed.
That might be what I personally believed the dissenting justices were thinking. But it’s not what they said. So it would be wholly improper for me to pretend that this was their view. And it doesn’t matter that, in my opinion, they offered no other “principled basis” for their dissent. That does not give me license to distort what they said.
This is not a simple matter of your not being clear. You just flatly got it wrong. I would like you to admit it.
Prof. Stone replied, with a touch of irritation:
You still don’t get it. The Court (for what it’s worth) says that the findings are not “dispositive.” What it means by that is that they are not binding on the Court. But the Court clearly relied upon them, even though admitting that they are “uncertain” and not necessarily right. Courts do this all the time. You’re simply overriding the statement that the findings are not “dispositive.” To say that they’re not “dispositive” does not mean they’re not relevant and it does not mean that they are not critical to the result ultimately reached. I take it you’re not a lawyer.
That last line is the inspiration for the title of this post. I replied:
In my last e-mail, I said:
I challenge you to provide a quote from the opinion — any quote — to support your contention.
I re-extend the invitation, which you declined in your last e-mail.
If there is some aspect of the opinion that I am just not getting, it should be child’s play for a law professor at one of the nation’s top law schools to show me that I’m wrong, with language from the opinion.
But I don’t think you can do that. I have read the majority opinion two or three times now. I see nothing there to support your contention that the Court placed any relevance whatsoever on the Congressional findings. The Court placed some weight on the evidence presented to Congress, as well as the evidence presented in the lower courts. But I found no indication in the opinion that the Congressional findings based on the evidence were in any way relevant to the Court’s decision. To the contrary, the Court explicitly disclaimed reliance on those findings.
I decline to answer your question about whether I am a lawyer. It’s not relevant to what we’re talking about. I will say this: if this were merely a battle of credentials, you would win, hands down. But this should be a discussion about the facts. And the facts are simple . . . namely, you are wrong when you say:
In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.
Again, I have already offered language from the opinion that directly contradicts this assertion of yours. If you have a quote from the opinion to prove me wrong, I am eager to read it. But I don’t think such a quote exists.
Prof. Stone replied, with an e-mail that sounded like the end of the discussion:
I’ve explained it to you. Beyond that, you’re on your own. You have every right to disagree.
The next two e-mails are where Prof. Stone concedes that the findings we have been discussing are not the ones relating to the rationale for the law. Here’s how that concession came about.
Despite his refusal to give me a quote to back up his opinion, I went back to the opinion yet again, and tried to see what he could possibly mean — bending over backwards to give him the benefit of the doubt. I noted that the Court did indeed give some weight to some Congressional findings — just not the ones that Prof. Stone had complained about. The Court did find relevant some findings regarding the rationale for the law, even though it rejected the findings the regarding the relative safety of the D&E and intact D&E procedures. Perhaps the findings on the rationale were the findings he claimed the Court had relied on? That would not make any sense, since it was the findings regarding the lack of a medical necessity for partial-birth abortion whose inaccuracy had so disturbed the professor. Still, giving him the benefit of the doubt, I wrote this:
Your e-mail sounds like a sign-off, but let me attempt to re-open the discussion. When you refer to Congress’s findings, I have been interpreting that as the findings with respect to the safety of D&E versus intact D&E. Those are the findings that you ridicule the Court for accepting.
I will grant you, however, that the Court did rely on Congressional findings with respect to the purpose for which the Act was passed — namely, that the procedure is brutal and confuses the ethical duties of physicians.
When you say that the findings were “the critical difference” to the Court’s decision, are these the findings to which you refer?
Because if they are, then you are correct to say that the Court found them relevant — but you are then incorrect to assail the Court for accepting factually false findings. The Court clearly indicated that it gave weight to Congress’s rationale for passing the law, but no weight to the factually flawed findings regarding the relative safety of the two procedures. It is nothing more than sleight of hand to mush the two together.
Prof. Stone replied graciously:
I appreciate your effort to understand my point. As I read Kennedy’s opinion, he did not disregard the congressional findings about the value of intact D & E to protect the health of the woman or about the safety of intact D & E relative to alternative procedures. He discounted those findings only to the extent of saying that they were not “dispositive.” But he took them into account in concluding that these matters were “uncertain.” And that uncertainty was critical to the Court’s outcome. Remember, the outcome was to uphold the law in the absence of a statutory exception for the health of the woman. It was the absence of that exception that was the issue in the case.
The other legislative findings that you cite seem largely irrelevant to that question, and although Kennedy fusses over them I don’t see how they relate in any meaningful way to the question actually before the Court — whether a statutory health exception was constitutionally required (as the Court has always held) or whether an “as applied” health exception would suffice. That question has nothing to do with the “brutality” of the procedure or the standing of the medical profession. Remember, Kennedy conceded that the law couldn’t constitutionally be applied in such a way as to endanger the health of the woman. The question was whether the statute had to have that exception. On the question, the critical factors have to be the relatively safety of the procedure and the extent to which the unavailabililty of the procedure might endanger the health of women. Only if the procedure is relatively unsafe and largely unnecessary could the Court conclude, in light of the precedents, that an “as applied” exception would suffice. And that, of course, brings us back to the congressional findings, without which the decision to uphold the law without a statutory exception would have been incoherent.
I will grant you this, though. If I were writing my post now, after our exchange, I would try be more clear about this. You’ve helped me see that my criticism of the Court on this point requires more explanation. But the point remains: the Court relied upon, and needed to rely upon, specific congressional findings that the Court should have dismissed as unfoundned (not merely as “not dispositive”). (On the other hand, I concede that the Court did not rely upon the finding about medical schools teaching the procedure. But the existence of that congressional finding is nonetheless relevant because it underscores just how irresponsible and politically-motivated the congressional findings actually were.)
Here’s the bottom line: If the Court had behaved in a principled manner, it would either have invalidated the law on the basis of its earlier decision because of the absence of a statutory health exception or it would expressly have overruled its earlier decision and faced the question head-on. Instead, it wrote a disingenuous opinion that fudged and tried to have it both ways. (If you knew me, by the way, you’d know that I would criticize such an opinion regardless of whether I was sympathetic or not with the result.)
For me, though, the really interesting and important point of the case is not about the findings, which tell us more about Congress than the Court, but about the religious makeup of the five justices in the majority, which I find fascinating. That was the real point of my post. It was that, rather than this incidental squabble over the findings, that I thought would draw the most ire. It’s that facet of the case that interests me intellectually — the role of religion in law, the relationship between religion and morality, the extent to which government should impose laws on nonbelievers when the laws are based on the religious views of believers, and how the Court should deal with those questions. In fact, I’m writing a book on that subject at the moment. So, I thought I’d try out a strong statement of my thesis in this post. It’s ironic that you’ve wanted to fuss about my comments about the findings, which I personally didn’t regard as particularly important or interesting.
Anyway, I value a good argument. It can be illuminating. Thanks.
Note that he finally concedes that the Court did not rely on the finding about whether certain schools are teaching the partial-birth abortion procedure. Interestingly, however, this is the only finding that he cited in his post — and he cited it as evidence of the Court’s sloppiness for accepting that flawed finding.
Thank you for confirming that our discussion has been about the Congressional findings regarding the relative safety of the procedures — and not the findings relating to the rationale for the law, such as the findings regarding the procedure’s brutality, or regarding medical ethics. That is an assumption I had made throughout, based on your post, but I am relieved to see that my assumption was correct.
With that assumption in mind, I think you and I have a fundamental disagreement as to whether Justice Kennedy took into account the Congressional findings — as opposed to the evidence supporting those findings.
I contend that the opinion is quite clear in relying upon the evidence presented both to Congress and the lower courts. It is equally quite clear in rejecting the findings based on that evidence as dispositive. Further, I cannot find (and, despite my challenge, you have not cited) any language in the opinion to support the notion that the Court relied on the findings as opposed to the evidence. When the Court discusses medical disagreement over the safety of the procedures, it cites the evidence, and not the Congressional findings.
If you were to read the opinion again with this contention of mine in mind, I think you would find that I’m right.
The Court’s stance is hardly unusual. As you know, appellate courts often make rulings based upon whether a contention is supported by the evidence, even if a lower court’s findings made from the evidence are erroneous.
Why does this matter? Why did I choose to focus on this weakness in your post, rather than on your argument about the Justices’ Catholicism?
Simple: because your mistake creates a strawman, making it easier for you to attack the opinion. If you a) conclude without textual support that the Court relied on the findings, as opposed to the evidence; b) neglect to tell readers that the Court explicitly disclaimed reliance on the findings; c) neglect to tell readers that the Court recognized flaws in the factual findings; you may then d) triumphantly reveal those same flaws in the factual findings, as evidence of the Court’s neglect of the facts.
It is then easy to ask why the Court was so neglectful of the facts — and a short step to concluding that the justices in the majority did so because of their religion.
But something different happens if you acknowledge that a) the Court rejected the findings as dispositive; b) the Court gave no indication that it was relying on the findings, as opposed to the evidence; c) the Court itself noted the flaws in the findings; and that d) the Court based its findings on the evidence (not the findings) presented to Congress and the lower courts. Now, in order to attack the decision, you must either attack the evidence relied on by the Court, and/or show why the Court’s conclusions based upon that evidence are wanting.
That’s a tougher argument. I’m not saying it couldn’t be made, but it’s tougher.
By asserting something that is not true, namely, that the Court relied upon the Congressional findings (as opposed to the evidence presented to Congress and the lower courts), you created a strawman and took the easy way out.
That’s why this matters.
Finally, even if you could show a quote from the opinion to support your contention that the findings (as opposed to the evidence) was relevant (and I don’t think you can), I still fail to see how it could be “the critical difference” when the Court itself said it wasn’t dispositive. You have, in your e-mails, changed your contention to arguing that the evidence was “critical” — but that is different from what you said in your post, which was that it was “the critical difference.” Isn’t “the critical difference” the same thing as a factor that receives “dispositive weight”?
Thanks for your response.
And there the matter stands. He has not responded, and I don’t think he will.
The next time you find yourself overawed by an opinion, simply because it has been expressed by a law professor, I want you to remember this exchange. If you read the Gonzales opinion, it will be that much more meaningful to you. In my view, this exchange is proof that even a man who used to be the Dean of the University of Chicago Law School can get basic facts wrong — especially when he is blinded by his political views.