Among the many responses to my earlier post about Carhart, were some that accused me of "anti-Catholic bigotry." I can't say this completely surprised me, but it's surely unfortunate. Assume the following: (1) In 1954 the Supreme Court, in a closely divided decision, holds that racial segregation in public schools is unconstitutional. (2) Seven years later another case comes to the Court posing almost exactly the same issue, with only a slight variation in the underlying policy. (3) A well-trained and disinterested lawyer would conclude that the 1954 decision clearly controls the new case. (4) Because of changes in the makeup of the Court in the intervening years, by 1961 five of the Justices now come from states that had been racially segregated in 1954 and that continue to contest desegregation. (5) In its 1961 decision, the Court essentially limits the 1954 precedent to its facts, without offering a persuasive or principled legal analysis. (6) The vote is 5 to 4 and all five Justices in the majority are those from the deep South. In such circumstances, would it be rash or inappropriate to point out the possibility that the five Justices in the majority might have let their personal values and beliefs have an undue impact on the decisionmaking process?
Or, to flip the question, suppose in 1954 the Court upholds racial segregation in the public schools but that seven years later the Court, without offering a persuasive or principled legal analysis for its result, limits the 1954 decision to its facts and essentially holds racial segregation in public schools unconstitutional. This time, assume that the make-up of the Court had changed in the intervening years in a different way. Assume that by 1961 five of the Justices were African-American and that all five Justices in the majority in the 5-to-4 1961 decision were African-American. In such circumstances, would it be rash, or racist or otherwise improper to point out the possibillity that the five African-American Justices might have allowed their personal backgrounds and values to have undue weight in the decisionmaking process?
I think these are perfectly legitimate and important questions, even though they might make us uncomfortable. And I would have no qualms posing the question in any of these situtations, not because I am bigoted against Catholics, or Southerners, or African-Americans but because I want to understand what makes the Justices tick. Moreover, I am particuarly intrigued with this question in the religious context because I'm trying to understand whether the principle of separation of church and state should create a special responsibility on citizens, legislators, and judges not to impose their religious beliefs on other citizens. Carhart poses an interesting case in which to raise that question.
I acknowledge, of course, that some people who commented on the earlier post think that the two "partial birth abortion" cases posed meaningfully different questions and therefore would be distinguished by well-trained and disinterested lawyers. I'm skeptical of that claim. 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.