"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.That's right. It couldn't have anything to do with the fact that the five justices very correctly believe that Congress as a whole is better equipped to make factual findings than 9 lawyers, or that the "settled precedent" is hardly as iron clad as he claims, or that the entire line of abortion cases were wrongly decided from the start. It was the people of the United States, through their representatives in Congress across the political spectrum, who overwhelmingly came to the moral and factual conclusions - not just five justices who happen to be Catholic.
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality." (emphasis added)
How typical. If a judge doesn't follow the reasoning of a most learn'd professor, it can't be that the professor is wrong, or even that there could be two legitimate but different interpretations of the existing law. No! There must be some nefarious motive! Perhaps the Court's opinions are now being routed through the Vatican for approval. Maybe the Freemasons have something to do with it. Wasn't it Justice Scalia holding the camera in the studio where they faked the moon landing?
When called out on this absurdity by many comments on his post, other bloggers, and even Professor Rick Garnett on the same blog, Professor Stone responded by resorting to what may be the most tired and dishonest meme in academia - "I was just trying to make people think."
"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." (emphasis added)How good of him to so "acknowledge." But with respect to the Professor, that was not the point of the post. The point, made clear in the title "Our Faith-Based Justices" and made even clearer in the direct statement that "these justices have failed to respect the fundamental difference between religious belief and morality," was to answer a question, and make an (untrue) accusation - that the majority intentionally ignored settled law to make a decision based on their personal policy preference. How ironic that a defender of Roe v. Wade would be upset by such a thing...
Accusations like this seek not to inform the debate over how to use and interpret our Constitution, but to stifle that debate by making it illegitimate. "Limited government or a well documented history of judicial restraint isn't their motive, their real goal is to institute a papal theocracy! No reasonable person could have come to the majority's conclusion, this is what happens when we let those ignorant religious nuts vote!"
This attitude is intellectually bankrupt and profoundly un-democratic. Sadly, neither intellectual rigor nor respect for democracy are de rigeur in academia these days.