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April 25, 2007


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Echoing many of the comments here, Prof. Stone's column is truly an embarrassment in legal (logical?) analysis. As someone who is pro choice, I wish that there was someway to retract this trite from the blogosphere - it is a disservice to anyone who believes that a woman's right to an abortion should be a federal constitutional right. But what makes this all the more disappointing is that it comes from a constitutional law scholar (an endowed professor to boot) at what some consider to be one of the Top 5 law schools in the United States. His observation and conclusion (re: the effect of catholic justices) is little more than a modified version of that old joke in which someone observed that more townsfolk were dying despite having more doctors. The punchline, of course, is the person making that observation fails to take into account that the town's population had grown exponentially. If Kennedy (who's opinion I am not defending) - one of the band of Catholics - actually wanted to overturn Roe because of his catholic predictions, he could have. But he didn't. So somehow he managed to rise above his personal beliefs (in Casey) and reaffirm a women's right (however limited by this decision) to have an abortion.


"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?"

No, and in fact the evidence points directly to the contrary. Stone ignores two important data points.

First, how Kennedy the Catholic voted in Casey.

Second, that Kennedy's opinion -- which is limited very expressly to a very narrow reading of the statute -- simply does not track with Catholicism. Were Kennedy reasoning as a Catholic rather than as a judge, he would have overturned Roe entirely. Certainly he had the votes to do it. But allowing abortions by some methods and not by others, he is clearly not simply advocating Catholicism, which condemns all abortions under all circumstances.


Is anyone surprised that lawless fanatics like Ginsburg, Souter, Stevens and Breyer want to impose their religious cult and their most holy religious sacrament (i.e., abortion and particularly partial birth abortion) on America? Will those four lawless fanatics and their pal Anthony Kennedy next declare interspecies "marriage" to be a "fundamental constitutional right"?


Third -- That pro-life positions have been taken by justices that are not Catholic (like Justice White, who was Episcopalean);

Fourth -- That pro-choice positions have been taken by Catholic justices (like Justice Brennan);

Fifth -- That the two Catholic justices (Scalia and Thomas) filed a separate concurring opinion expressly rejecting Roe, which implies that the three Catholic justices that did not join the concurrence (Kennedy, Roberts, and Alito) hold a different position on Roe.

Sixth -- Even Eras, who seems to be Stone's lone remaining sympathizer on this post, agrees that the justices were not "bringing their religious beliefs into their" Carhart decision.

There is probably more evidence that soundly debunks Comrade Stone's catholic conspiracy, but I think that suffices for now.


Mr. BAC, you are triumphing over a straw man. Mr. Stone never even implied that there was a 'Catholic conspiracy'.

Scott Noto


I'm not sure what else to call it when a law professor cites or otherwise alludes to a justice's religious background as the reason behind a court decision. Respectfully, I think you're reading of his comments is well outside the parameters of common sense and plain English.

As for those "ferocious" terms, again, it is insightful to read Stone's comments in light of the historical record, rather than in isolation.

That aside, if my interpretation is "weak," tell me: why do you suppose this particular "observation" is only made with respect to Catholic judges? If you'd argue it's not, please point to some examples.


I have two problems with Stone's post.

One, looking at the "real" motives of the Justices without having first grappled with their stated reasons is kind of obnoxious, rude, and itself divisive. It seems to me to violate a principle of rhetoric to ask people to account not just for the actions as openly defended in an opinion, but also all of their hidden, unknown, and possibly unknowable motives. Certainly, there is a heavy burden of proof in making this charge.

If one did this in ordinary conversation, it would be a conversation killer. It would be like if I said, "Oh, Stone, you're just saying that because you're a Jew." Or, more saliently, you just like gay marriage because your daughter is a lesbian. And if he said, "Hey, that's kind of rude." I said, "Well, I'm just asking provocative questions." Give me a break.

Now Stone may not see here why this charge matters because he has a record of being duplicitous, and he thinks this duplicity is justified because everyone supposedly is a liar just like him. This is the essential insight of the nihilistic legal realism he embraces. But for normal people with a moral compass that actually value integrity and honesty, this kind of "unmasking" when done so casually and crudely is rightfully seen as obnoxious.

Second, I call BS on this whole non-apology apology/explanation because Stone has literally zero record of supporting divisive speech and scholarship when it comes from people he does not like, particularly Christians. I don't think a minority championing the rights of other minorities counts, even if he has thrown a bone to Muslims once or twice. That's just making common cause against the majority and its right to self-government. Hence his intense support for individualism, which translates as anti-majoritarianism in a wide range of matters of public concern.

I don't recall him defending Lawrence Brown for his academic freedom at Harvard when he annoyed the feminist thought police, nor do I remember him speaking out against the illiberal trend of "hate speech" prosecutions in his liberal nirvana of Europe, nor the discriminatory anti-Christian/Muslim immigration policies of Israel.

This guy suggested that Samuel Alito was not qualified to be on the Court because of some convoluted theory of constitutional interpretation that does not allow people who disagree with Stone on the occasional civil liberties question to be on the Court. This guy also somehow divines a Constitutional right practically to commit infanticide while he does not see a right to own guns for self defense. This kind of hackery is a mess.

Stone is on his face a results-oriented liberal hack. I also think he doesn't like Catholics, as evidenced by the casualness, crudeness, and utter one-sidedness of his take on Catholic justices. These hypothetical olive branches about his willingness to criticize all black or all Southern majorities are irrelevant. He's never had to do so when liberal results were obtained. Why not discuss the overlap of American Jews or blacks and liberal politics? Others, including former SDS henchman Mark Rudd have done so. But Stone wants us to ignore the obvious: he thinks Jews and minorities and anyone that agrees with him can do so for any reason and in any way that advances liberal politics that happen to help the various groups to which Stone belongs, but he does not think such actions are legitimate when they are pursued by other groups in the exact same way and achieve results he does not like.

Stone's writings on this subject are not scholarship or even serious opinion making. They are crude propaganda at best.


Mr. Noto, the problem here lies in a tiny article in your statement:

"I'm not sure what else to call it when a law professor cites or otherwise alludes to a justice's religious background as the reason behind a court decision."

In this sentence, the false assumption you make revolves around the article 'the'. You should have used 'a'. Most of the other critics of Mr. Stone made the same mistake. Once you realize the significance of the difference, then the criticisms seem grossly unfair.

Scott Noto


And? Sorry, I don't see a point in your last message.

The reality is that, after posing the question re: the reason behind the decision, the first thing Stone says is that all five justices are Catholic. Why? Whether it's "the" reason or "a" reason, it's out there and a quite unfortunate comment.

Whether "the" or "a" is used is irrelevant, nor does verbal hair splitting resurrect the legitimate quetions about his presuppositions that people like myself have raised on this board. Please note that we only have the ability to measure him by his words, not his unstated intentions.

I'll leave further comment to others.

Scott Noto


And? Sorry, I don't see a point in your last message.

The reality is that, after posing the question re: the reason behind the decision, the first thing Stone says is that all five justices are Catholic. Why? Whether it's "the" reason or "a" reason, it's out there and a quite unfortunate comment.

Whether "the" or "a" is used is irrelevant, nor does verbal hair splitting resurrect your criticism of the legitimate quetions about his presuppositions that people like myself have raised on this board. Please note that we only have the ability to measure him by his words, not his unstated intentions.

I'll leave further comment to others.


How many Catholics are permanent faculty members at the law school? That's right, none. I remember I'd see Dennis Hutchinson at Mass sometimes, and that's it, and I believe he's technically through the LLS program in the College.

Couldn't this lack of interaction with academically-minded Catholics just make someone like Stone sound like the parochial bigot he is? I bet he literally did say, "Everyone I know voted for McGovern."


Mr. Noto, the difference between "the" and "a" in this case is gigantic. To say that the Catholicity of the judges was "the" reason for their decision is to declare their Catholicity to be the ONLY reason for their decision -- a grossly bigoted thing to say. To say that the Catholicity of the judges was "a" reason for their decision is to put it among many other factors without specifying the relative importance of that reason. From the sentence as written there is nothing you can infer that would contest the claim that Mr. Stone intended to suggest that the Catholicity of the judges was 0.1% of the reason for their decision -- and to suggest such a tiny role in their decision is not bigoted. How much of any one judge's opinion is not at least 0.1% affected by what he had for lunch that day, or whether his hemorrhoids were acting up? We just don't know. While it is entirely possible that Mr. Stone was thinking 90%, we simply cannot infer that with any confidence, hence the firestorm of criticism leveled against him is unjustified.

David P. Lyons

Putting entirely aside the accusations of anti-Catholicism that have been hurled at Professor Stone, I think it's fascinating that, when confronted by attacks on the rhetoric of his earlier post on this topic -- and rhetoric at its worst was all that earlier post was -- Professor Stone seeks to obscure and mischaracterize his earlier post. He now claims that he was raising "perfectly legitimate and important questions, even though they might make us uncomfortable."

Sadly, for Professor Stone, the content of his earlier post has not slipped down a memory hole. In his earlier post he did not raise a "question" about the religion of the five justices in the Carhart majority. Instead, he "observed" that

"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. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.

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

Professor Stone, your own interpretive method may lead you to the comforting view that words mean whatever you want them to. The actual import of the words of your first post, however, are as contrary to the mischaracterizations presented in your second post as the Constitution's actual text is to your notions of what the document should say.

Frederick Hamilton

It is the overwhelming concensus even on his own law school blog that Prof Stone crossed the line of propriety. I am intrigued that the Univ of Chicago Law School has no Catholics when the Supreme Court has 5. What should the take on that be? Lets get into makeup of law professors at Univ of Chicago religously shall we? Jews? Catholics? Protestants? Atheists? Shouldn't their religous beliefs be factored into their writings and teachings.

Prof Stone is simply trying to ingratiate himself to a future Democrat president. That has been obvious to me for as long as I have been reading the Univ of Chicago Law Blog. He is trying to establish his political bone fides. His posts reflect that. His postings should be given the constitutional scholarship they deserve. Not much. He is the quintessential political hack of a law professor. Or as is now being articulated: "the Rosie O'Donnell of law professors".

It is as simple as that.


thank you very nice topic thankks. :)


White, privileged, Catholics looking to play victim status. That's what this is all about. It is a relevant fact that all of those who voted in one way on a controversial issue are members of a group that has strong views on the issue. A bunch of noones on an anonymous board trying to tear down a man's reputation. Who are you, Frederick Hamilton? Show your face.

David P. Lyons


Considering that you don't seem to have a genuine University of Chicago e-mail address it would seem that you ought not be criticizing others for their use of anonymity: indeed, in my case, my full name and UofC e-mail address are here for all the world to see.

David P. Lyons

Frederick Hamilton

Annonymous I am not. I am indeed Frederick Hamilton. I do not desire to give out my email address on this post. I am hiding behind nothing. You are John Who?

My face if you could see it would be white. As I have acknowledged above, I am prostestant and not a Catholic.

If you don't like the fact that Prof Stone has traveled outside the bounds of propriety then take that up with Prof Stone.

My reason to hold his views of the Constitution in low regard stems from his Catholic analysis and his support of FAIR v Rumsfeld on the basis of the 1st Amendment free speech argument that was roundly castigated by the Supremes 8-0. A number of constitutional law school professors wondered aloud how anyone thinking the Solomon Amendment took away from a law schools ability to engage in free speech probably shouldn't be teaching constitutional law.

Ergo, I hold to my premise. Prof Stone is a political law professor of the highest magnitude and does so to enhance his profile with the Democrats and just may pay off some day with a federal judgeship.

How else could you explain Catholic/Carhart or FAIR/free speech? A political ax to grind is my take.


David P Lyons: Your post is nothing but "rhetoric" as well. What does that mean anyway? All communication is "rhetoric." Is there fundamental truth to your postings that is not present in Prof. Stone's posts. From your perspective, perhaps, but from mine, you're the one toying with language. How is making an observation that all the Justices in the majority are Catholics inconsistent with raising a question about the issue? That's the "rhetoric" of legal discourse. In making an observation one raises the issue.

I am anonymous, but I'm not trying to tear down a man's reputation either. And I am a white, privileged Catholic boy too. A u of c grad student too.


ignoring for the moment the issue of whether prof stone is incompetent, the anti-christ, or merely an ambitious political opportunist (leave it to the good doctor to come up with the most extreme partisan hackery), let's abstract his question:

what can be said about the voting pattern (not result) in the decision?

and my reply would be to ask oneself:

did I expect the minority vote to be otherwise? did I expect the majority vote minus kennedy to be otherwise? did I view kennedy as the swing vote? do I think "swing vote" means voting with a consistent pattern?

if the answers are "no" X 4, then the catholic consistency may or may not indicate any nefarious behavior, but one certainly shouldn't have been "shocked, shocked" by it.

returning to prof stone, I'd argue that his disappointment should have been expressed by a critique of kennedy's unpredictable opinion rather than the quite predictable voting pattern.


Frederick Hamilton


Could Prof Stone be partisan?

The Catholic thing was over the top. He knows that or he wouldn't have done the second post protesting the obvious. I think his legal postions are obvious, biased and liberal down the line. I just feel that having that mindset doesn't allow for a fair and balanced analysis. He casts stones at others and should look more closely at himself. Kinda Biblical, he who is without...cast the first stone.


I note with dismay that this entire discussion has been about Mr. Stone rather than Mr. Stone's ideas. This is shameful, and the stench of it is starting to affect everything in this discussion. Now we see people attacking each other. This is turning into a henhouse of clucking biddies, not a forum of reasoned discussion. Shame!

Feel free to trash Mr. Stone's ideas. Quote his statements, assemble your case, and show where the mistake is. But leave Mr. Stone out of it; he is irrelevant to any serious person.


Mr. Hamilton, perhaps you should apply that precept to yourself.



You still don't seem to get it. Stone's original point was devoid of ideas or reasoning. CTW has it right (and I rarely agree with him) -- complaints about Carhart should be focused on Kennedy's flip flop from his Casey days, not his Catholocism.

Stone's attack on Carhart seems so outlandishly unjustified that his motives become suspect and are placed at issue.

Maybe you think it inappropriate to deconstruct motives behind blatantly unreasoned opinions. But if that's your view, you should be first in line in condemning Stone's original post.

Frederick Hamilton

How can you leave Stone out of it? He was the one claiming the Catholic bias of the justices. Once you make a claim like that to be suprised and shocked that a good many on this blog and throughout the country would take issue is a little naive don't you think?

He is not irrelevant. He made the argument.

Since then, it has come to light that there are no Catholic law professors at the Univ of Chicago Law School. Just maybe if there were some Catholic professors at the law school, Prof Stone would be able to interact and realize that being Catholic doesn't mean you vote with the Pope and doesn't render your legal thinking clouded.

Possibly if this were a law student positing the position that the votes of the justices were Catholic based the law school would insist on sensitivity training?

Sorry Eras, it is all about Prof Stone. Now as to his claim/intimation of Catholic bias in the votes which is what you want us to focus on, that position has been debated on this post and successfully debunked here.

And yes, I am conservative. I have a bias toward the conservative legal position of original intent, et al. I am not the Constitutional legal expert, Prof Stone is.

Many a person has assembled Prof Stone's quotes, assembled the case against his position, and have shown the mistakes.

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