Faith Based Justices (Again)

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.

Comments

[Patrick Molloy]

Professor Stone,

Wouldn't you want to show that the five Catholics used used one set of principles when judging cases not involving the Catholic faith and violated those principles only when the Catholic faith was involved?

[Frederick Hamilton]

Or just perhaps the 5 justices voted on the fact that the law passed by Congress overwhelmingly and signed into law by the president was not a law that deserved to be overturned and that the ban of the gruesome procedure was something within the purview of legislative decision making and not judicial activism.

Perhaps the 5 judges would vote the same way if a case resting on Roe v Wade percolated up to the Supreme Court.

i.e., it is just possible that the 5 justices indeed view the Constitution a little different than many a law professor or even previous Supreme Courts.

Liberals and conservatives take umbrage at the Supreme Court riding roughshod over the Congress and the executive at times. Witness the grilling from Leahy and Specter of Roberts and Alito regarding the disdain they felt the court held the legislative branch.

You can be sure without a doubt that the 5 didn't vote the way they did because they were Catholic.

As an aside, I think you can make the argument that the reason there now is a majority on the Supreme Court that are Catholic has more to do with the fact that most Catholic schools do a much better job of educating their pupils than the public schools and therefore the best and the brightest seem to coming from Catholic schools. Possible? The children flee to the Catholic schools in Milwaukee as the vouchers allow.

[gp]

Mr. Hamilton,

Are you a law student or lawyer? Or just an interested partisan? Your comments always make me chuckle, and I wanted to understand where you came from.

[bts]

There's a difference between posing a question and asserting its answer in jeering tone.

You accused Justices Roberts, Scalia, Kennedy, Thomas and Alito of deciding to mandate morality on account of their faith. That's fine. Not especially civil, but fine. There's no need to pretend now that you considered other factors than their Catholicism in the original post, or that you meant to invite serious discussion with your conclusory condemnation.

[Sobek]

Not only did you do it with a jeering tone, you also deliberately misrepresented the Court's opinion to shore up your attack. If you're all about getting people to think about underlying motivations, why doesn't that sword cut both ways?

And the question I asked on the other post never got a decent answer: if too many Catholics on the Court is a problem, what's your proposed remedy?

[BAC]

The hypothetical is nothing like Carhart.

Unlike the assumed facts in your hypothetical, you cannot point to a "change in the makeup" of the Court to explain the different results in Casey and Carhart. In contrast to Stone's hypo, Carhart parted from Casey because Kennedy flip flopped, not because the Court became more Catholic. With Ginsburg, Breyer, and Stevens squarely supporting abortion rights, and Souter and Kennedy having joined the plurality in Casey, their was no reason to beleive that the current "makeup" of the Court would reject Casey. (And in fact the Court did not reject Casey.)

What comes through in both Carhart and Lawrence is Kennedy's willingness to flaut stare decisis to get the result he wants. The basis for Kennedy's whims (whether faith-based or not) is anyone's guess. At the very least, it's indefensible to accuse Kennedy of making faith-based decisions based soley on the weak reasoning of Carhart without looking at his wider body of weakly-reasoned jurisprudence.

It would be interesting to discuss the extent that religion can and should influence our laws. But Stone only did that discussion a disservice by raising it in the wrongheaded context of blaming Carhart on the Catholics.

[Frederick Hamilton]

Interested partisan physician with an avocation toward the law. No formal legal training. Lots or reading and observing. My opinions certainly will more from an outsiders point of view. Although try to understand the intricacies of the law.

[Sydney Carton]

Professor Stone,

You must take us all for fools. You were not merely "posing the question." You deliberately asserted that the justices violated their oath by allowing their religion, specifically Catholicism, to intrude upon their analysis in a way that went beyond the regular influences all of us receive from our upbringing and background, in order to write the opinion.

Your musing smacks of unadulterated bigotry against Catholics. You're the anti-Catholic Bigot professor now, and you'll be known that way until the day you exit public life. I suggest you resign immediately, exile yourself to Elba, and never speak in public again. America doesn't need cranks like you teaching law.

The shallow nature of your bigotry is exposed because you offer no evidence, and fail to distinguish how THIS opinion and THESE justices had an influence from their religion, when justices like Brennan, who overturned all death penalty laws in the country on the basis of his strong moral outrage, were not. The difference seems to be, you're pro-abortion, so you flail around wildly attacking the justices. Since you can't fault their reasoning, you grab at their religion. Thus, you prove yourself to be not only incapable of dealing with their argument, but you show everyone in the world what a bigot you are. Congratulations, jerk.

[Gabriel Sutherland]

Is there any evidence whatsoever to conclude or even posture that the majority used Roman Catholic doctrine to produce their opinion other than the fact that all five are Roman Catholics?

This comment removed at request of the author.

[Erasmussimo]

I went back and carefully re-read Mr. Stone's first post. The strongest judgemental statement he made regarding the faith of the justices was this:

"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality."

I find the many attacks on Mr. Stone to be trumped-up. He never expressed disdain for Catholics or their religion. The hysterical shrieking about his post is purely partisan in nature and devoid of substance. While I am uncomfortable with Mr. Stone's phrasing, I do not find Mr. Stone's comments fundamentally objectionable; the basic point he raises is worthy of consideration. I do, however, object to the obviously partisan and grossly hypocritical attacks upon him.

[Scott Noto]

Mr. Stone:

You are presuming that the majority was guided solely (or, in part) by their religious beliefs, which they apparently sought to impose upon society (violating, as you say, church-state separation).
The first question you must answer for us is, if this is not a subtle form of prejudice or bigotry, why is this issue only raised with respect to Catholic justices? Courts make such moral judgments all the time. It is unavoidable. Does one's non-faith, agnostic, or atheist background not guide their reasoning If so, why is it left undiscussed?

Certainly you are aware that your observation echoes a long-standing prejudice in this country, one well-documented by the historical record. How do you suggest we go about distinguishing the tone and nature of your "observation" from, e.g., similar rhetoric we find regarding Catholics in the 19th Century? As a graduate of the College, I am especially troubled by this.

Scott Noto, BA '00

[Sydney Carton]

Erasmussimo,

Your opinion on the matter is irrelevant. I'm Catholic. As the Don Imus situation has shown, an unjustified, generic attack on the characteristic of a people is unacceptable in public society. Frankly, your assertion that Stone's point is worthy of consideration tells me that either you're too ignorant to understand why his assertions are without merit, or you're just as bigoted. Either way, anything you contribute to the discission is worthy of being ignored.

[Erasmussimo]

You make some interesting points, Mr. Gabbert. I can offer one partial response to your thinking: diversity of opinion is desirable. The majority in this decision were all of the same religious inclination. We can certainly argue that diversity of opinion yields stronger decision-making, and so there would be a case for criticising the makeup of the court for its lack of diversity. This, however, does not seem to be central to Mr. Stone's thinking.

I don't think that the accessibility argument you offer takes us very far. Yes, the tenets of Catholicism are ready to hand -- but so is black history, Jewish belief, women's history, and so forth. Yes, some people argue that you can't appreciate the point of view unless you've lived the life. But I just don't see how your argument leads us to any clear conclusions.

But now let me turn to your key issue:

"were the majority's Catholic faith shown to have played any role whatsoever in their reasoning, it would render the result illegitimate."

I think that this strong wording misrepresents Mr. Stone's position. I again quote what I consider to be Mr. Stone's key sentence:

"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality."

Inasmuch as religious belief is a superset of morality, Mr. Stone implicitly acknowledges the correctness of bringing moral elements into play. His objection is to the inclusion of specifically religious elements as opposed to narrowly moral arguments. While this distinction can certainly be debated, to suggest that Mr. Stone did not write in good faith is unfair.

Mr. Carton, I challenge you to provide a quotation from Mr. Stone's posting that constitutes an attack on Catholicism.

[Francis Beckwith]

It seems to me that if one is looking for what makes justices "tick," one should ask the question as to why a certain cluster of justices virtually always vote together on matters of religion and almost always use pejorative terms to describe the nature of religious beliefs. Here I am thinking of the justices who use terms like "divisive," "sectarian," and "dogma," and unleash a parade of horribles (e.g., 30-years war, crusades, etc.) when they describe religious beliefs and the mental state of religious citizens. For some of these justices allowing the Good News Club to hold after school meetings is only a stone's throw away from witch hunts and book-burnings.

These justices--despite their differing ecclesiastical affiliations--embrace a commonly-held view of religious epistemology, namely, that religious claims by their very nature cannot be items of knowledge that may be assessed rigorously and may at times legitimately count against the deliverances of so-called "secular reason." The greatest offenders on the present court are Justices Souter, Stevens, and Ginsburg. In the past, Justices Brennan, Douglas, Black, and Blackmun were particularly skilled at sequestering religious beliefs to the realm of the "private" while seeming to respect them.

My students at Baylor--many of whom are very smart and sophisticated Christian believers--have laughed out loud in class when we read the ridiculous claims about religion found in the writings of our supposed enlightened jurists. One of my students--familiar with 70s sit-coms--has referred to Justice Stevens as "Archie Bunker in robes."

[BAC]

Right on Scott.

Let's look again at the Casey decision. You had three Catholics, three Episcopalians, a Lutheran, a Protestant, and a Methodist on the Court at that time.

The Catholics were split (2 pro-life, 1 pro-choice), the Episcopalians were split (2 pro-choise, 1 pro life).

Now Stone seems to imply that Carhart I came out differently from Carhart II because we replaced an Episcopalean (O'Connor) with a Catholic (Alito), as if all Episcopalean judges vote the same (compare O'Connor with White) and all Catholics vote the same (compare Kennedy with Scalia).

So, to take Stone's silliness to the next level, to defend our Constitutional rights we we should have replaced O'Connor with another Episcopalean -- but not a draconian (dare I say quasi-Catholic) Episcopalean like Justice White), but with the more gentle (dare I say quasi-Jewish) Episcopalean like Justice Souter.

Protestants and Jews seem to alwasy be safe bets -- but they might face troubles in the confirmation process, particularly if you have a lot of Baptists on the Committee.

But whatever you do, avoid Lutherans, they hate the Constitution almost as much as the Catholics -- not to disparage the thoughtful (dare I say quasi-Protestant) Catholics like Brennan and Kennedy (before Carhart I when he turned into more of a Lutheran).

See, religion really is helpful in understanding the Supreme Court!

[Erasmussimo]

Mr. Beckwith, I again recommend the advice of Mr. Christ, who urged us to keep the secular separate from the spiritual. The justices you criticize are following Mr. Christ's advice. What objection have you to that?

Mr. BAC, I think you raise the best counterargument to Mr. Stone's case. It's never wise to rely on a single data point to draw conclusions. The only reasonable way to determine if justices are permitting their religious beliefs to interfere with their legal judgement is to carry out a statistical analysis of their decisions. Even then, such an analysis would be crippled by the difficulty of rating cases for their religious content.

[Scott Noto]

Erasmussimo:

I think that particular observation is rebuttable by the following distinction:

A. A hypothetical court decision upholding a requirement that all public school children pray the rosary, with the majority comprised of Catholic justices.

and

B. A decision upholding a ban on partial-birth abortion, as in this case.

One doesn't have to be Catholic, or even Christian to support the latter. Whereas the former is decidely a "Catholic thing." Therein lies the rub. What is specifically religious, then, about the majority opinion? Nothing.

However, the answer Prof. Stone proposed, whether explictily or not, is that it HAS to be religious because the justices ARE Catholic. Given the base illogic of this, it is not entirely unfair to raise questions about any underlying prejudice in his analysis, especially when history is replete with similar examples. Hence, the concerns. We cannot simply ignore the historical parallels, which point to an underlying hysteria that somehow Catholics are seeking to "impose" their religion on this country. We either have to do one of two things:

1. Acknowledge and accept that faith guides our conscience and thinking just as much as a rejection of faith, and thus is equally credibly as a means of intellectual discourse and complements (rather than opposes) reason.

or

2. If we don't accept that, then we must accept that a secular, non-religious view is no less a "moral judgment" (which, at its core, involves a simple 'should' or 'should not') than a so-called religious one and, thus, subject to the same "painfully awkward observation" that Stone has made.

[Sydney Carton]

Erasmussimo: "The only reasonable way to determine if justices are permitting their religious beliefs to interfere with their legal judgement is to carry out a statistical analysis of their decisions. Even then, such an analysis would be crippled by the difficulty of rating cases for their religious content."

You are beyond parody. If a person were attempting to be deliberately ridiculous, they still couldn't come close to you.

[Francis Beckwith]

"Mr. Beckwith, I again recommend the advice of Mr. Christ, who urged us to keep the secular separate from the spiritual. The justices you criticize are following Mr. Christ's advice. What objection have you to that?"

Judges should accept the best arguments. Terms like "secular" and "spiritual" are adjectives that neither enhance nor degrade the quality of an argument. If the best arguments happen to coincide with a viewpoint affirmed by a theological tradition, then so be it. If not, then so be it.

[BAC]

Eras,

You're right, I hold little hope of a retroactive analysis of religious beliefs. But what about going forward? I propose we survey the current and future Supreme Court justices on their religious beliefs and practices. (You know, the typical stuff like their beliefs on transubstantiation, oral sex, UFOs, etc. etc.)

Then, going forward we can track how those religious beliefs affect their Supreme Court opinions. We could start with the obvious issues like abortion, prayer in school, downloading music, then maybe move to more esoteric topics like laches, standing, or Miranda. (I think the Baptists have been secretly plotting against Miranda for years.)

We need the best information available on these judges, or else we risk another faith-based travesty like Carhart.

[Erasmussimo]

Mr. Noto, I believe that you overstate your case in claiming that Mr. Stone "proposed, whether explictily or not, is that it HAS to be religious because the justices ARE Catholic." He most certainly did not do so explicitly, and I do not believe that he did so implicitly. If you think he did, please provide the relevant quote from his post that implies that the justices made their decision because they are Catholic.

Mr. Carton, if I have written something incorrect, by all means please expose it. Merely calling it such doesn't provide much enlightenment.

Mr. Beckwith, I heartily endorse your position that justices should segregate their religious beliefs from their legal analysis in rendering decisions. If their decisions happen to coincide with their religious beliefs, that's fine with me. I just don't like the prospect of justices explicitly bringing their religious beliefs into their decisions. I don't think that this has happened in this case, nor have I seen evidence that it has happened recently.

[Thomas]

This is too confused to be credible.

Kennedy, one of the authors of the joint opinion in Casey, insists that Stenberg isn't consistent with Casey. Did Stone allege that the liberal Protestants and Jews on the Supreme Court had refused to follow "controlling" precedent (amusing terminology at the Supreme Court, particularly coming from Stone)? That they'd resolved the case on the basis of their religious beliefs? No, he sure didn't.

What is particularly strange is that the majority in Carhart, whatever it did, didn't impose its religious beliefs on other citizens; rather, the majority allowed a law passed by Congress and signed by the president to remain in effect. If values were "imposed" in the case, it wasn't by the Court. In fact, were one to actually be interested in exploring the issue Stone says he's exploring, the right case to look at would be Stenberg, in which the majority overturned a law based on the Court's view of the constitution. If the Court's view were based in religion--and there's as much evidence for that proposition as for the one advanced by Stone--then obviously the majority would be "imposing" its views on others. That would be the interesting case to examine the issue Stone says he wants to examine. And yet, for some reason, it never occurred to him to examine it.

This bit about "surprise" and "unfortunate" is precious. No, it shouldn't surprise a bigot to be called one, but it is unfortunate, even inconvenient, for the bigot for others to come to recognize the truth.

[Scott Noto]

Eras:

As you wish:

"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."

Over-stated?

[Erasmussimo]

Mr. Noto, I do not agree with you that your quote demonstrates that Mr. Stone implied that the "it HAS to be religious because the justices ARE Catholic." As I read it, he raised the possibility that it was one factor in their decision. He later flatly stated that they had "failed to respect the fundamental difference between religious belief and morality." But this point does not directly address their Catholicity, it addresses their religiousity.

I concede that your interpretation has some merit, but it is far too weak a case to sling around some of the ferocious terms we've been seeing here.