Wednesday, April 25, 2007

It's Gotta Be Those Darn Catholics!

So suggests Professor Geoffrey Stone on the University of Chicago Law School's Faculty Blog, blaming our "faith based justices" for the Gonzales v. Carhart partial birth abortion decision correctly upholding the ban. After making his own factual assertions (including, amusingly, that partial birth abortion procedures are taught at many law schools) meant to show that the bi-partisan legislation enjoying overwhelming public support was completely irrational, he said:
"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.
***
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality." (emphasis added)
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.

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.

6 comments:

Anonymous said...

As if it's a uniquely catholic precept to be dubious about the founding fathers enshrining a right to collapse the skulls of infants.

Perhaps what's peculiar is not that the catholic justices voted one way, but that all the secular socialists, whose jurisprudence is invariably anti-religious, voted the other way - a way totally out of step with the vast majority of Americans and I'd venture, the founding fathers.

Anonymous said...

Right, Justice Kennedy, the theocrat.

Anonymous said...

On the other hand, the fact that all of those in the majority are members of an institution that strongly opposes abortion (and I mean the Church, not the Court) absolutely has nothing to do with their decision making.

I guarantee you that these five had their religious beliefs before they had their legal beliefs. It should be no surprise that their legal beliefs support their religious beliefs.

Orrin Johnson said...

You discredit yourself with such a comment. We don't need to guess about their motivations - that's why they write opinions. Attack their reasoning, if you can! If it's flawed, unreasonable, or requires illogical leaps to get to the answer they desire (like Roe and its progeny do), then you can start looking for some extra-judicial motivation.

Until then, resorting to "you can't deny their Catholocism has something to do with it" is the same sort of intellectual bankrupcy and admission that you can't win an argument on the merits as shouting, "Your momma!"

But I don't think the Catholic Church is all that fond of marijuana, either. Certainly most conservatives aren't. How, then, do you explain the vote breakdown in Gonzales v. Raich?

Anonymous said...

As if their catholicism affecting their jurisprudence is any different, in reality, than Ginsburg's extreme liberalism affecting hers.

modmilq said...

I don't think the Catholic church has any stance on Marijuana.