Why Prof. Stone Is Wrong to Blame the Gonzales Decision on the Catholic Beliefs of the Justices in the Majority
I took too long to address Chicago Law Professor Geoffrey Stone’s contention that the partial-birth abortion decision was driven by the fact that the Justices in the majority are Catholics. Jan Crawford Greenburg has already weighed in with an excellent post on the matter, as have Ed Whelan and Hugh Hewitt. Nevertheless, I’m going to toss in my two cents. My opinion may be useful because it is based in part on an e-mail exchange I had with the professor himself.
Prof. Stone says:
What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. 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. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is immoral and may be prohibited even without a clear statutory exception to protect the health of the woman.
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. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman to determine her lifes 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 ones personal religious faith.
Such serious accusations should be backed by solid evidence. For example, if someone were to accuse Federal Reserve Chairman Ben Bernanke of making decisions about interest rates because he is a Jew, I would hope that person would be dismissed as a crank and a bigot, unless he had smoking-gun type evidence to back such a wild allegation. Accusations directed at Catholics should be no different.
Such accusations are especially serious when levelled at judges, who have sworn an oath to uphold the Constitution. Prof. Stone is accusing the Justices of violating their oath.
So what does Prof. Stone offer as his evidence of this grave accusation? Virtually nothing.
Prof. Stone points to no public statements or writings by these Justices in which they indicate that they might elevate their religious beliefs over their oaths.
Nor does he provide evidence that the Justices in the majority have ruled according to their Catholic religious beliefs in other contexts. If their religious beliefs were so critical as to cause them to violate their oaths, you would expect to find evidence of this in cases dealing with other subjects. For example, the Catholic church teaches against the death penalty. But all the Justices in the majority have voted to uphold death sentences.
Justice Kennedy, the author of the decision, is the last person who can be accused of consistently ruling according to Catholic doctrine. He has voted to strike down a criminal law against homosexual sodomy — not thought to be a traditional Catholic position. Justice Kennedy voted in the majority in a major school prayer case. And Justice Kennedy was the decisive vote in the 1992 Casey decision that reaffirmed Roe.
How does the above square with Prof. Stone’s position? He doesn’t say.
Nor does Prof. Stone explain how there is a material difference in the teachings of the Catholic church on partial-birth abortion (or even abortion generally), as campared to the teachings of the Jewish religion, or the teachings of Protestant Christians. One would think that someone making such a serious accusation would provide such evidence.
Prof. Stone’s argument appears to be an argument that, in his view, the opinion is weak — and he can’t see anything else to explain its weakness other than the Catholicism of the majority judges.
Of course, there are plenty of good reasons to rule the way the majority did.
Justices Scalia and Thomas ultimately based their decision to join the opinion on their strong and principled argument for the position that abortion is not a subject covered by the Bill of Rights. It’s beyond the scope of this post to make the case fully, but Justice Scalia has done so in a number of persuasive dissents throughout the years. I outlined the basic argument here, in a post which quotes and links to Scalia’s arguments. The main point is that whether partial-birth abortion is an “undue burden” is a
conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it.
Prof. Stone might not agree with this argument, but to declare it so unprincipled that the only other explanation for the Justices’ vote is their religion strikes me as wholly unsupported.
Justices Roberts and Alito may agree with Justices Scalia and Thomas on that issue, and they may not. I suspect that they do, but that — consistent with their theory of reaching only those issues that are necessary to resolve a case — they felt it unnecessary to declare this position at this point in their tenure on the Court.
As for Kennedy’s reasoning, Stone attacks it through a strawman argument. He points to the Congressional findings supporting the ban, and claims that the Court relied on those findings as “the critical difference” between this case and Stenberg, the previous partial-birth abortion case. Stone then decries the findings as flawed, citing one specific finding regarding whether the procedure is taught in medical schools.
But in an e-mail exchange with me, Stone admitted that the Court didn’t rely on the one finding Stone provided as an example of a provably flawed finding. Further, despite my repeated challenges, Stone was unable to provide any language from the majority opinion to support his contention that the Court relied on the Congressional findings regarding the safety of the procedure.
To the contrary, the Court explicitly disclaimed any notion that those findings were dispositive, and indeed did not indicate that those findings were even relevant to its decision. Rather, the Court held that it had an independent duty to examine the evidence, and ruled that the evidence presented in the lower courts (like the evidence presented to Congress) went both ways.
In summary, Stone’s only criticism of the decision is a strawman that misrepresents the Court’s language.
With no valid criticism of the decision, and no evidence that religion played any role in the decision, Stone never should have made this accusation.
UPDATE: Stone backtracks.