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

[ctw]

"I don't view economic redistribution as violating the rights of the wealthy minority."

agreed, and it's worth noting that for some time now net redistribution of wealth has been decidedly toward the wealthy - a violation of rights to which we can all aspire.

BTW, distorting my opinions is as likely as not to be an improvement, so no apology necessary. (:>)

-c

[ctw]

"[d]ecisions of this social magnitude ..."

the decision to be made vis-a-vis many such issues is whether a fed constitutional right exists. now a court may decide that in fact the proposed right doesn't exist at the federal level, in which case the issue may be referred back "to the people" (presumably meaning to the states). but once the question of a fed constitutional right has been raised and accepted at the fed level, I see no way to implement the referral prior to addressing that question. and I don't believe fed judges have the option of saying "we think deciding this is too hard, so we're going to punt back to the states". they have to actually decide it isn't a right, and judges can't conscientiously so decide if that's not their true opinion.

so it appears that the mantra "let the people decide" is not only tedious but also vacuous. ie, as some of us have argued all along, the only substantive complaint is the obvious "I think the opinion affirming this right was wrong and here's why". this might lead to some interesting and fruitful discussions, but the mantra (nevermind the mindless "liberal" name calling) is just noise.

and in the case of abortion rights, while I agree that a widely acceptable solution to the abortion rights mess is hopeless near-term at the fed level, it isn't clear to me how referral to the states would be effected if we accept prof george's presumably (per prof beckwith) maximally sophisticated framework based on "justifiable homicide". if the would-be mother has some fed constitional rights that in some specified circumstances makes an abortion justifiable homicide, they need to be identified and guaranteed. if not, then in practice the unjustifiability of the homicide probably means that it will need to be made illegal in all states. (are abortion opponents really going to be happy with some states allowing "unjustifiable homicides"? if not, they can just focus their protests on the offending states.) but then the result seems functionally equivalent to making abortion a federal crime.

perhaps some contentious but less critical issues could be referred to the states with less concern for adverse results. eg, consider teaching ID (for the purpose of this hypothetical discussion, I'm ignoring estab clause issues). if teaching ID (with or without evolution) in HS is seriously harmful, soon enough any adverse effects should show up in reduced SAT scores, lower college admission rates, etc. at that point, the citizens of those states can reconsider the wisdom of that policy in light of the possible detrimental effects on their childrens' futures. if parents don't like the result and have the means, they can move to another state. of course, that would lead to yet another perk of wealth, moving us ever further from even a semblance of equal opportunity.

-charles

[golddog]

Slate has an article on Justice Kennedy. It mentions Professor Stone's recent post.
http://www.slate.com/id/2165133/

The following is an excerpt from the article:

"In trying to reconcile Kennedy's dual visions of privacy, two possibilities emerge: Either he simultaneously holds two vastly different constitutional notions of privacy and autonomy—one for gay men and one for pregnant women—or all this has nothing to do with the Constitution.

It's reasonable to question whether the issue of abortion, for Kennedy, is personal. His opinion in Gonzales, like his dissent in the 'partial-birth abortion' case that went the other way in 2002, betrays his feeling of special and visceral horror of it. Professor Geoffrey Stone of the University of Chicago recently suggested that the result in Gonzales stems from the religious beliefs of the five-justice majority, who are all Catholics. That calculus may be far too simplistic. (Kennedy was also Catholic when he signed on to Casey, after all). Still, it is certainly true that religious people of many faiths have historically idealized (and also infantilized) pregnant women. Kennedy wrote in Gonzales that 'respect for human life finds an ultimate expression in the bond of love the mother has for her child.' In his view, abortion violates a woman's very nature."

[ctw]

for those interested in the "when does human life begin?" issue, this review of a doug hofstader book describes hofstader's somewhat unconventional take on that (though in the context of consciousness, not abortion) and a surprising (and pleasant, for those with happy close relationships) attendant conclusion:
http://www.americanscientist.org/template/BookReviewTypeDetail/assetid/55116;jsessionid=aaa4KxL1uKYE6

-charles

[ctw]

in a rare instance of minor agreement with our conservative commenters, I would suggest that the sort of flowery language apparently favored by kennedy (and others) detracts from any weight that his opinions might have.

for example, when one actually reflects on the meaning and not just the sentiment of "the right to define one's own concept of ... the mystery of human life", one can interpret it as endorsing ignorance. I'll accept that each person is at liberty to define their own sense of life's "meaning". but I see the "mystery of human life" as being a matter of biology, and altho one undeniably is also at liberty to be ignorant of the relevant science, there is no need to glorify being so.

that's why in the absence of an attractive strictly legal argument, I prefer the approach of my "pragmatic judge" who in appropriate situations [1] straightforwardly says "we have a problem here that clearly needs fixing, and this is the best solution we can come up with". the strict constructionists can, of course, still criticize the approach, but at least they can't make fun (IMO justifiably) of "penumbras, of emanations"-type verbiage.

note 1:

griswold is clearly such a situation, almost any aspect of abortion is equally clearly not. to suggest a straight-line path from the former - decided in accordance with my suggested "pragmatic approach" - to the latter is beyond ridiculous.

the problem with griswold was trying to solve a narrow indisputable problem with a broad, ill-defined "privacy right" rather than just stating the obvious, viz, that "the people" had voted with their "feet" (nice euphemism, no?) to overturn an anachronistic law. IMO, lawrence should have been decided on o'connor's EP grounds, not some hodge-podge of privacy and SDP, which would have disconnected it from griswold. ie, it was the griswold attempt to put a patina of legal "reasoning" on an obvious problem that was in error, not the easily pragmatically justified result. (all IMO, of course.)

-charles

[Joan A. Conway]

Joan, are you a native speaker of English. Much of your previous comment is unintelligible or awkward or both.

Posted by: Roach | April 27, 2007 at 02:17 PM

I do this on the run at the library besides my other business; I doubt if Robert E. Scott's words are unintelligible but for my typing.

[Andrew]

Professor Stone Sullies the Pages of the Chicago Tribune.

http://www.confirmthem.com/professor_stone_sullies_the_pages_of_the_chicago_tribune

[TwoL]

Mr. Hamilton,

Your comments show that you are not trying very hard to "understand the intricacies of the law." Try harder, and we'll support

[Frederick Hamilton]

Twol,
Just trying to make observations on how the law and abortion might be able to have a relatively sane coexistence. I suspect it is not possible. The devil is in those intricacies of the law you talk about.

I suspect the only way to address the issue for denouement would be for the Supremes to reverse Roe v Wade when the appropriate case makes it to their level and then let the issue play out in the varius legislatures and allow such a contentious issue to be outside of the legal arena and within the legislative (public determination) arena where it belongs.

[Frederick Hamilton]

Twol,
Just trying to make observations on how the law and abortion might be able to have a relatively sane coexistence. I suspect it is not possible. The devil is in those intricacies of the law you talk about.

I suspect the only way to address the issue for denouement would be for the Supremes to reverse Roe v Wade when the appropriate case makes it to their level and then let the issue play out in the varius legislatures and allow such a contentious issue to be outside of the legal arena and within the legislative (public determination) arena where it belongs.

[Frederick Hamilton]

Twol and others:
I would recommend the following url of yesterdays debate between Prof Stone and Prof Eastman regarding the recent Supreme Court decision on abortion.

It provides the "intricacies of the law" and also the generalized need for legislative deference. Quite good.

http://hughhewitt.townhall.com/Transcript_Page.aspx?ContentGuid=44440832-cbdb-4c02-8b97-2de30f46fdc4