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Tuesday, September 01, 2009

Prof. Stone (again) on "our . . . Catholic justices"

Prof. Geoffrey Stone returns, here, to the phenomenon of "our . . . Catholic justices."  A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Prof. Stone caused some controversy with his assertion that the justices in the majority -- all Catholic -- had "failed to respect the fundamental difference between religious belief and morality", a distinction that "[t]o be sure, . . can be an elusive distinction, but in a society that values the separation of church and state, . . . is fundamental."

I responded, here (see also this), and disagreed.  I thought, and think, that the majority was both reasonable and correct in concluding that the Constitution permits Congress to regulate abortion in the way that it did, and that their decision did not involve the imposition of specifically Catholic "religious belief."

In his latest piece on the subject, Prof. Stone's proposes a number of arguments, grounded in data about justices' voting in abortion-related cases, intended to support, if not to "prove[]", his initial assertion that the Catholic justices' religion best explains their vote to uphold Congress's enactment. 

I'll leave it to readers, for the most part, to assess these arguments, but would suggest that Prof. Stone's claims seem at least as consistent with the hypothesis that "non-Catholic justices are more likely than Catholic justices, in abortion-related cases, to give in to the temptation to impose their policy preferences and disable politically accountable actors through implausible readings of the Constitution" as with the hypothesis that "Catholic justices, in abortion cases, tend to rely on specifically Catholic beliefs and morality rather than on the Constitution's meaning."  That is, the observation that Catholic justices tend to vote against the constitutionalization or expansion of abortion rights should raise not only the (in Prof. Stone's words) "awkward" question whether they are imposing their religious beliefs, but also the question, "why are the non-Catholic justices more likely to get it wrong, when it comes to abortion?"  The merits matter, no?

UPDATE:  Geof Stone and I have had some conversation about our respective posts, and he kindly agreed to let me share the substance of this conversation.  

Geof wrote: 

I disagree with your post in the following way: I don't believe it is illegitimate for judges to consider their policy beliefs in interpreting the Constitution (although I agree that should not be the touchstone for constitutional interpretation). But I do believe it is constitutionally illegitimate for judges to consider their religious beliefs in interpreting the Constitution. In my view, consideration of religious beliefs is on a par with consideration of partisan political beliefs. That is, it is (in my view) illegitimate for a judge to decide a case because the result will benefit the Democrats. Similarly, I believe it is illegitimate for a judge to decide a case because the result reflects his religious belief.

Then, I responded:

In my view, any distinction between a judge's "policy" beliefs (which a judge may consider) and her "partisan political beliefs" or her "religious beliefs" is going to be, in real cases, ephemeral, and probably in the eye of the beholder.  In any event, the view that the Constitution permits (and, as a matter of policy, the law should impose) reasonable regulations on abortion is not, in my judgment, a "religious belief"; it is no more "religious" anyway than the view that the Constitution permits (and the law should impose) regulations of employment discrimination in the work-place.


And, Geof replied:



First, I agree that is will often be difficult for a third-party (such as a court) to know whether to know whether an individual is acting on the basis of legitimate or illegitimate considerations, as long as there is a plausible legitimate justification. For that reason, courts generally avoid inquiries into actual subjective motivation, and for the most part I agree with that doctrine. But what I'm talking about here is not whether a third-party (such as a court) should determine whether an individual (in this case, a judge) is acting on the basis of legitimate or illegitimate considerations. Rather, I'm arguing that individuals themselves should attempt to be attentive to this concern and should be introspective and self-critical about it. Consider a Southern judge in the 1950s who acquits a defendant charged with a lynching. It is possible, of course, that the judge has made an appropriate decision based on the governing rules of evidence. It i! s ! also possible, and perhaps likely, depending on the circumstances, that the judge has been affected by a host of impermissible consideration in reaching this judgment, including racism, fear of retribution, etc. It may be that other courts can't do much about this situation, but at the very least a responsible judge trying to fulfill his responsibilities should be attentive to the risk that he will be illegitmately affected by these concerns and should be as careful as he can be to avoid being affected by them. It was in this respect that I question whether the justices in the majority in Gonzales did as careful a job as they should have done.

Second, I don't disagree at all with your assertion that opposition to Roe is not necessarily based on religious beliefs. To the contrary, as a matter of pure constitutional interpretation, Roe was a difficult decision, and responsible lawyers and judges can certainly disagree with its understanding of the Constitution,without regard to their religious beliefs. We agree completely on that. (On the other hand, it's important to note that strong personal religious beliefs on an issue like abortion might affect the judgment of some judges. In my view, as I've said, it is the responsibility of judges to try not to let their own religious views affect their interpretation of the Constitution). But I agree with your central observation. Moreover, I would agree that Stenberg could quite plausibly have been decided the other way (that is, upholding the ban on partial-birth abortion) without any consideration of religion. ! Bu! t when we get to Gonzales, I have grave doubts that a disinterested lawyer, trying responsibly to apply the law as it then existed, could reasonably have reached the result of the majority (without overruling Stenberg). It was that fact about Gonzales that intrigued me. I just don't believe that a neutral and detached judge, asked to decide Gonzales, with Stenberg as a precedent, would reach the result reached by the majority. Thus, in my view, something else was affecting the justices. So my point had nothing to do with Roe, or even Stenberg. It was the peculiarity of Gonzales that stuck in my craw.

Posted by Rick Garnett on September 1, 2009 at 10:37 PM in Constitutional thoughts | Permalink


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Rick, I read the latest Stone piece as actually something of a retreat from his prior argument. In his last paragraph, he notes that Sonia Sotomayer will almost certainly vote in the opposite direction. Stone now indulges in the alternative (and, in my view, much more convincing) hypothesis that ideology, rather than religion, explains the votes in abortion cases. And he does very little to refute this alternative hypothesis. He does throw out some statistics, but half-heartedly. The "Republican non-Catholic justices" who have voted in favor of abortion rights (i.e. Stevens, O'Connor and Souter) are so clearly in a different ideological category to Scalia and Thomas that, as long as one considers the alternative hypothesis of ideology and not religion, it is almost impossible to reject.

Posted by: TJ | Sep 2, 2009 12:10:51 AM

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