Patterico's Pontifications

4/25/2007

Prof. Stone Backtracks — Without Admitting It

Filed under: Abortion,Constitutional Law,Court Decisions,General — Patterico @ 5:06 pm



In a new post, Prof. Geoffrey Stone backtracks from his earlier assertion that Catholicism, and not legal principle, was behind the majority decision in the partial-birth abortion case. Stone now suggests that he was merely posing the question:

I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it.

In this passage, Prof. Stone reveals that he interprets his own posts almost as poorly as he interpreted the partial-birth abortion decision. Prof. Stone may well have intended for his post simply to “pose the question” whether religious convictions formed the basis of the opinion. But, as written, his post actually asserts that this is what happened.

The post was titled Our Faith-Based Justices. Here are some of the passages which show that Prof. Stone was not just posing a question — he was making an accusation:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. . . It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. . . . By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. . . . As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

. . . .

As the Court observed fifteen years ago, “Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example.

(All emphasis mine.)

If that is not an accusation that the Justices ignored legal principles in favor of their moral and religious beliefs, then the English language has no meaning.

Prof. Stone tries to illustrate his point by hypothesizing that Brown v. Board of Education was decided by a closely divided vote, and then reversed by Justices from segregationist states. Wouldn’t we draw a connection there? he asks.

But Prof. Stone loads the dice by proposing a hypothetical opinion — one supporting segregation — that nobody thinks has a principled basis in Constitutional law. In marked contrast, there are many principled arguments for a decision rejecting abortion (and particularly partial-birth abortion) as a Constitutional right. As I explained this morning, this principled view is shared by at least two Justices in the majority (Scalia and Thomas) and possibly two more (Alito and Roberts). Prof. Stone may disagree with the argument that abortion is not protected by the Bill of Rights — but it would be laughable to call that argument unprincipled.

Once again, Prof. Stone has produced an extraordinarily unpersuasive blog post.

9 Responses to “Prof. Stone Backtracks — Without Admitting It”

  1. The good professor has perhaps been sniffing too many emmanations from the penumbras.

    Bill M (c00fa3)

  2. His word mean what he intends them to mean, nothing more, nothing less.

    Curtiss (dc35ef)

  3. It seems that he has never practiced law. I feel sorry for his students. My Constitutional Law professor was a regional director of the ACLU. My Civil Procedure professor faced lynching in the South alongside Thurgood Marshall. Ignore him, Patterico. He’s not worth your time.

    nk (49aa3f)

  4. professor stone sounds like a liar and a pussy for backing away from such a defensible position in such a disingenuous manner.

    assistant devil's advocate (81d111)

  5. Well, if you don’t have a Bible Thumper (RW Christian Fundamentalist) to jump on, you can always try to skewer a Mackeral Snapper (Roman Catholic)!

    Ain’t being a Progressive grand?

    Another Drew (8018ee)

  6. Prof. Stone:
    and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.

    Nor is it appropriate for the state or the justices to resolve any question on the basis of one’s personal prejudices; whether they be prejudice against religion, Christianity in particular, or any related beliefs such as regarding the rather horrendous procedure of a partial birth abortion as a mere religious topic.

    Ray G (50194a)

  7. His word mean what he intends them to mean, nothing more, nothing less.

    I hope that was a joke of some sort.

    Language only works when both participants agree on the rules. It’s hardly a stretch to assume the prof. pretends to speaking english and is therefore bound by the rules of english.

    In short, what he says means what he says.

    Taltos (c99804)

  8. Some people are complete idiots, don’t you think?

    Update:The point of my comment was to pose the question and to invite people to think about it.

    Kevin (e89cee)

  9. Well, I’d like to think about it, Kevin, but I’m a complete idiot and can’t. 🙂

    Sam (add49f)


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