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April 20, 2007


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Lackawanna Blues

This is truly beyond the pale.

Geof Stone is a disgrace to the Law School of the University of Chicago.


Geoff Stone makes a reasonable point, I believe: namely that religion sometimes influences people's beliefs, including their jurisprudential philosophy. But if he can point this out to suggest disparagingly that Catholic Supreme Court Justices are simply engaging in a crude form of results-oriented jurisprudence and are abdicating a proper judicial role on account of their religious beliefs, I should be able to point out the religion of others when it seems to makes sense, as in the case of Muslims and their penchant for supporting, committing, and excusing terrorist acts and engaging in various forms of illiberalism, right? And I should also be able to point out the left-leaning, universalist and sometimes explicitly anti-Christian interpretations of freedom of religion that come (understandably enough) from secularists and Jews, including the overwhelmingly Jewish ACLU, of which Justice Ginsberg was a part.

I suppose the only thing missing from Stone's typically adolescent posting above was a suggestion that these men were acting on direct orders from Rome.


I won't bother to address the nonsense offered by the two previous commentators here.

Mr. Stone raises some important points. There's no question that the decision turns logic on its head with its blanket acceptance of the patently false Congressional findings. The question in my mind was, why did the Justices go to such extremes of judicial activism? Mr. Stone's answer, their Catholic faith, leaves me uncomfortable. I would be happier with attributing it to a subordination of rationalism to religious dogma. Certainly we have seen plenty of people from all religions willing to suspend rationalism in deference to their religious beliefs. I see no reason why a Protestant or Jewish justice would be immune to this kind of thinking.

Unfortunately, the decision itself doesn't reveal much of the majority's real thinking on the matter; their acceptance of the fallacious Congressional findings allows them to mask their true thought process. But I suppose the fact that they would hide behind so absurd an excuse suggests that they preferred not to present their true thinking.

Lackawanna Blues

It is judicial activism to not strike down a law that our elected Congress passed (by huge majorities in both houses) and our elected President signed?

That's a whole new definition of judicial activism that I'm not familiar with.

You're a real Webster's Third kind of guy, eh?


In fairness to Justice Thomas, he wrote in his concurrence that he maintains that the Court's jurisprudence on abortion has no basis in the Constitution, and sided with the majority for that reason. I don't think he was relying on Congressional findings in deciding the case. I think he stuck to his theory of interpretation. You may not like it, you may think it absurd, but I don't think his decision had anything to do with being Catholic. I think it had everything to do with being an originalist.

Edward Grant

Professor Stone's commentary reflects the not-so-soft bigotry against Catholics and/or Catholicism that pervades the "upper echelons" of the media and academia.

I trust that for reasons of space alone, Prof. Stone neglected to cite those provisions of the Constitution that enshrine the right to deliver a child virtually to the point of birth, and then plunge scissors into the back of the head, all for the purpose of "evacuating" the contents of the cranium, i.e., the brain. Perhaps another correspondent can enlighten us regarding this. In the meantime, many of us will sleep just a bit easier knowing that this marginal nod in the direction of human dignity has survived the gauntlet of what passes for "constitutional law" in this country.

Prof. Stone's analysis does not address those hundreds of Senators and Representatives who voted for the PBA law, including such liberal and Catholic stalwarts as Tom Daschle and Patrick Leahy. Why are they spared his anti-Catholic attacks?

Memo to Professor Stone: Aside from the fervid Judge Dooling in the Hyde Amendment case, no federal court, and certainly not the Supreme Court, has bought the canard that laws protecting unborn life are violative of the Establishment Clause or the Free Exercise Clause. Yet, your entire argument here is premised on that utterly fallacious proposition.

Those of us on the receiving end of this bigoted nonsense have had enough. We're the ones who are mortified, Prof. Stone. And you and your fine institution should be ashamed.

Lackawanna Blues

Stone is just flat wrong. He would get an F is someone was grading his case brief.

Majority opinion:

"Although we review congressional
factfinding under a deferential standard, we do not in the
circumstances here place dispositive weight on Congress’
findings. The Court retains an independent constitutional
duty to review factual findings where constitutional rights
are at stake.

As respondents have noted, and the District Courts
recognized, some recitations in the Act are factually incor-
rect. Two
examples suffice. Congress determined no medical schools
provide instruction on the prohibited procedure.

The testimony in the District Courts, however, demonstrated intact D&E is
taught at medical schools. Nat. Abortion Federation,
supra, at 490; Planned Parenthood, 320 F. Supp. 2d, at
1029. Congress also found there existed a medical consen-
sus that the prohibited procedure is never medically nec-
essary. Congressional Findings (1), in notes following 18
U. S. C. §1531 (2000 ed., Supp. IV), p. 767. The evidence
presented in the District Courts contradicts that conclu-
sion. See, e.g., Carhart, supra, at 1012–1015; Nat. Abor-
tion Federation, supra, at 488–489; Planned Parenthood,
supra, at 1025–1026. Uncritical deference to Congress’
factual findings in these cases is inappropriate.


Seemingly, Professor Stone believes all people are reasonless automatons when it comes to conforming their professional judgment to the tenets of their closely-held beliefs. Should we then believe that it is rabid anti-catholic ism that drives Professor Stone irrationally to suspect a Papist conspiracy on the high court? Have you no decency, Professor?

David Buysse

Professor Stone asserts that "(i)n fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E..." (sic).

In medical argot, D&E refers to "dilation and evacuation." In "laws schools" might it refer to "dissimulation and evasion"? Perhaps "deception and equivocation"?

"Multi famam, conscientiam pauci verentur."

George Liebmann

When I was at the law school, there were still realists like Levi and Llewellyn about. Whatever happened to Holmes' notion that "the law is the external expression of our moral life" or of his view that "the Constitution was made for persons of differing views" or of his view that "the felt necessities of the time have more to do than the syllogism with the way men are governed"?

The notion that the majority here is driven by religious views rather than views as to the appropriate scope of the judicial function is absurd. Holmes, Brandeis and Cardozo were not Roman Catholics. Can one picture any of them joining in Roe, or in Justice Ginsburg's dissenting opinion in this case?

Prof. Stone says no fetus is preserved by this ruling. But does not society have a right to be squeamish about what looks like killing of a viable fetus outside the womb? That may not be the best place to draw the line between abortion and infanticide, but doing so overrules no precedent.

Stenburg, in any case, is a very murky precedent. No previous case, on its facts, involved a third term abortion, or a statute even arguably limited to third term abortions. Roe's declarations on this subject were pure dicta. The 'pro choice' briefs in Stenburg made much of the possible application of the statute to first and second term abortions, and O'Connor's view that 'health' was controlling has much to do with this. Would she have invalidated a statute tracking the British Abortion Act, which explicitly prohibits third term abortions, and only third term abortions, without a health exemption. I doubt it. A legislature would be rendering a service were it to enact such a statute.

Does Prof. Stone think that it is only Roman Catholic morality that is being vindicated here? The state and federal legislators who enacted the federal act and the thirty odd state statutes are not predominantly Roman Catholic; in some Southern states few if any of them are. As any number of writers, eg W.E.H. Lecky and Crane Brinton have pointed out, the prohibition on infanticide is an important point at which Judeo-Christian moral teachings diverge from the Roman.

Were something like the British act enacted and upheld, the Catholic Church would be much less engaged in the abortion controversy. It has sat relatively still for the Western European laws liberalizing abortion but banning third term abortions. Prior to Roe, it sat quite still with respect to the New York law allowing first term abortions, but angrily protested a Maryland law, pre=Roe, repealing all abortion laws, securing its veto by Gov. Mandel. On this issue, it is fundamentally far more tolerant than Prof. Stone or Justice Ginsburg.

Finally, the refusal to veto a non-First Amendment law on its face is a becoming recognition of the difference between courts and legislatures, between legislation and adjudication. The Constitution does not give the courts a veto over legislation; proposals to do so were three times rejected by the constitutional convention. No intelligible reason exists for making abortion laws an exception to the general rule. Women after all have been enfranchised since 1920; Justice Ginsburg may dislike paternalistic legislation but she certainly seems to favor maternalistic judicial decisions debasing the political process, to say nothing of judicial confirmation hearings.


Goodness, look at the cultists sweat!They get so uncomfortable when it is pointed out to them that their irrational theistic beliefs are at odds with reason and objectivity.

The fact is these judges have held that a coneception of "morality," one that is *necessarily* grounded in faith, trumps a woman's right to privacy and equality and this is a grotesque and frightening abdication of their responsibility not to invoke their irrational religious faith in how they apply the law.

“Some of us as individuals find abortion offensive to our most basic principles of morality, but than cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”

Let us not forget that Jews believe life starts at birth. This fact alone should give deep pause to anyone who would take the Estalishment Clause and the idea of separation of Church and State seriously.

Geoff Stone, you are a gem. You are one of the few reasons I am a proud graduate of the U of C Law School.


Lackawanna Blues beat me to the punch.

If this summary were offered by a law student it would rate an "F."

This post is an embarrassment to the University of Chicago Law School.

Lackawanna Blues

LAK, I'm not quite sure what you are saying. Are you suggesting that Roe v. Wade and the Court's permissiveness towards the murder of unborn children is brought to us by virtue of Jewish judges (such as Ginsburg and Breyer) imposing their religious views on us?

Sounds like a job for Hugo Black and the Separationists (aka the KKK).


I've always had the uneasy feeling that the Pro-Life movement had Establishment clause issues although I never expected my extreme view to have academic support. I'm not sure, however, that Professor Stone meant to proclaim a legal principle as much as to express the same chill that I feel when members of any religious group feel morally compelled to enact their stance on a controversial topic into law. I remember telling Dean Neal at a class reunion that we Jews see church state separation was a survival issue because history shows us that without it eventually our ancestors were always killed. I've long posed what I refer to as the moral dilemma of the Spanish Inquisitor. I take on faith that he truly felt that torturing non-believers was in their best interests because they'd suffer the far worse fate of eternal damnation if they failed to repent. He may even have been correct, but I'm glad I'm not living in a system where his view could become law by majority vote. I'll be back on campus for another reunion in a few weeks so we may have an opportunity to extend this discussion in person.


Here are the real questions. Does society have the right to restrict things that make them squeamish? Maybe.

Do they have the right to restrict things that are in the best medical interest of a patient because it makes them squeamish? The Supreme Court says yes, which should put every person who wants autonomy concerning their personal medical decisions on guard.


On top of being little more than anti-Catholic prejudice, there is also some confusion and sleight of hand in Stone's post.

Religion or lack of it, as well as aesthetics, intuition, sentiments, self-interest, traditions, upbringing, etc. affect all kinds of moral beliefs. These affect the belief that people should have human rights, that blacks and whites are equal, that the rights of accused are important, that we should not have an established church, that women should be able to have an abortion, or that government should govern by consent of the governed.

It is something of a myth to think there is some scientific and rational way to adopt a political philosophy and that Englightenment Liberals did and continue to do so, while the rest of us are just shooting from the hip, all cocksure, because of our obscurantist religious beliefs. While rationalism is internally rational, it too is founded on assetions outside of reason, the so-called "self evident" truths of the Declaration of Independence and the reestablishment of poltical morality on materialist foundations indifferent to the inculcation of virtue.

Stone writes, "By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith."

Stone contrasts the supposed obviousness and rationality of his pro-abortion position with the primitivism and religious bias of his opopnents'. There are in fact many foundational pre-moral axiomatic questions of metaphysics on which moral reasoning depends. When you start unravelling the fabric of morality, you get to some unprovable moral principles that are necessary to proceed but are themselves outside the purview of ordinary moral reasoning.

Plato talks of the "golden chord" and Kant of the "song we sing to ourselves" as the foundation of moral reasoning. C.S. Lewis calls in the Tao. In other words, there is an aesthetic and intuitive foundation to moral principles that cannot easily be criticized, proven, or analyzed by moral reasoning. Often the foundation of this reasoning is religious, but not always.

More important, whether one is religiuos or not, it should be noted that Stone's pretentions to objectivity and rationality are not persuasive. He probably knows this and hopes to pull the wool over our eyes, adopting the mantle of objectivity that he would reject if embraced by those who think objectively that something like sodomy or killing one's child violates a primary moral duty--not merely a biological urge--to procreate and advance the human race and that this "telos" for sexual ativity is self-evident.

There is not a rational, scientific, and unprejudiced ways to bring foundational moral beliefs to the table whether it is the view that a woman's autonomy trumps other values including the rights of a fetus to life or the opposing view that a fetus has the same right to life as an adult or any of the views in between.

This is to some extent why we have what is properly called a culture war. We have few shared beliefs, and our nation's traditional beliefs have been under assault by a self-conscious counterculture since the 1960s.

Needless to say, the main proponents of that counterculture came from religious and racial minorities alienated from America and purporting not to expand the orbit of values but instead questioning those values themselves as an expression of bourgeois/white/Christian privilege. That one of its players would now redefine his amorphous revolutionary creed as an objective morality, and that of his opponents as mere assertion, is an insult to thinking people.

The jig is up, Stone. We can see your dupicitious, ever-shifting, dishonest, ideologically-tinged, and self-serving rhetoric from a mile away. Your assaults on the Catholic justices are little more than projetions of your own transparent faults and results-oriented reasoning.


"Our obligation is to define the liberty of all, not to mandate our own moral code."

I never noticed the part of the Constitution which entrusts this power to the Supreme Court. It must be in some emanation or penumbra.

Since the Court has nothing to work from in defining liberty for all, it must fall back on the moral code of its members.

"[Brennan]joined the decision in Roe because he believed in the separation of church and state and because he was convinced that his religious views must be irrelevant to his responsibilities as a justice."

Surely his responsibilities as a justice include fidelity to the Constitution? This document is not a blank sheet of paper on which justices may write what they wish.


"But the findings must at least be rational and, when a law restricts a fundamental constitutional right, the findings must be almost unimpeachable."

This assumes that which is highly questionable - that abortion is a fundamental constitutional right.


Mr. Roach, having abusively excoriated your arguments elsewhere, it is necessary for me to acknowledge the cogency of the bulk of your arguments here. However, I do take issue with some of your reasoning.

You rightly observe that, when it comes down to foundations of morality, de gustibus non est disputandem. However, you seem to suggest that this justifies the application of whatever moral foundations a judge favors. I disagree. A judge's task is to interpret the law, regardless of his/her own moral stance. For example, a judge's personal views on sodomy must be absolutely dismissed from all consideration in judging a case. This is elementary jurisprudence. Thus, while you are correct in noting the arbitrariness of moral foundations, this arbitrariness is irrelevant to our considerations. It *is* relevant to legislative considerations -- the legislature is the place to bring together all those subjective values and hammer out something that works. Not the judiciary.

I believe that you overlook one factor in support of the claim that some of the values conflicts are based on rational analysis: the rationalization of values (here I use the term 'rationalization' in the sense of ironing out inconsistencies).

The history of law is a process of ever broader rationalization. Hammurabi's laws were narrowly phrased, quite specific in their application. They operated at a low level of abstraction. Roman law was initially expressed in low levels of abstraction, but as Roman legal tradition developed, inconsistencies in the various laws created tensions that required corrections. These tensions were initially addressed in patchwork fashion, but the big moment came when Justinian had the whole thing completely reworked. Fundamentally, the Justinian reform was a replacement of low-level abstractions with higher-level abstractions, thereby eliminating a great many inconsistencies.

The process died with Roman law, but was reincarnated in modern law, and was well underway with English law before the American Revolution. The Constitution was a bold attempt to formally express the highest possible abstractions, and it was an impressive effort. Even so, inconsistencies remain. These inconsistencies are the stuff and substance of our legal disputes.

All the interesting court cases arise from inconsistencies in our laws. The abortion issue is the prime example. Which is more important: the life of a fetus or the liberty of the mother? Our Constitutional law prior to Roe v Wade was inconsistent on this point, because when the Constitution was written, a fetus was not a person, because it was not viable until birth. Technology changed that, yet here we are, stuck with 18th century laws that simply don't address the fundamental problem.

I think that some portion of the culture wars derives from the conflicting desires to 1) cling to our traditional beliefs; and 2) rationalize those beliefs. Traditionally, we hold human life to be of extremely high value; therefore, when confronted by the existence of a fetus, we extend that traditional belief to the fetus, and declare its life to be sacred. Yet, we have also traditionally placed extremely high value on the freedom of the individual to make his or her own choices.

These two traditional beliefs were not in conflict with regard to abortion in the 18th century. But modern technology has brought them into conflict. Thus, they need to be rationalized. Traditionalists on both sides simply insist upon their preferred traditional belief. But I think that the most cogent arguments come from those attempting to rationalize the two traditional beliefs. This is, of course, an immensely difficult task. I don't see any such effort on the part of the pro-lifers. I see some such effort among a minority of the pro-choice people, and I see Mr. Stone in that minority.

Lackawanna Blues

That's all great Eras, until you get to justifying a political theory that allows 5 unelected lawyers to overrule popular legislation based on their personal views about what the abstraction (otherwise known as the Constitution) has to say about it.

I choose republican government. You choose abstraction-synthesis-by-elite-law-school-graduates-in-black-robes. Good for you. Can the rest of us have our country back now?

Joan A.Conway

So Lackawanna you want the Political Model based on chance and not the rule of law and fact. But what if someone says to you, "that is frivilous!"


Erasmussimo raises some good poitns, but liberal judicial activists and thier open ended notions of equality, substantive due proess, and privacy are why these abstract moral questions are introdued into what should be a fairly technical process.

I agree judge's should not be able to apply their moral beliefs directly in what should be the more directed and circumscribed question of whether a law is constitutional. I disagree with Stone that that was what was done here or that what he proposes, the application of the allegedly objective morality favoring the pro choice position is anything more than a fancy way of saying, "I like what I like and want it to continue."

I think that some of these admittedly complex conflicts should be resolved legislatively through a process of debate, discussion, and ultimately counting votes. I say this because I don't think there is an easy way to resolve them otherwise and because I think the greatest legitimacy in contentious issues attaches to demoratic decisionmaking. I think many of the values expressed in the Constitution happen to be true, but we should remember this document too has a democratic pedigree and a democratic escape valve in the form of the amendment process.

Stone lacks credibility because he is a legal realist. Legal realists don't believe in law as a process with a range of legitimate and illegitimate answers, a continuum of correctness, with some results clearly correct or incorrect. They think law is dressed up power, and so that power should be used to support "progressive" goals and then the justifications used as a form of propaganda to justify (and obscure) what's just happened.

This is why the party that whined about "democracy" in the 2000 presidential elections is now using the filibuster in an unprecedented manner to block George Bush's judicial nominations.

Democrats will talk about the Imperial Presidency, Run-Amuck Courts, and an Out-of-Touch Congress with apparent sincerity. But there is no deep love or concern for constitutional structure (or law) among ideological liberals like Stone. Their results based philosophy and contempt for tradition does not permit it.

How else can you explain their contempt for federalism, enumerated powers, or the separation of powers? This is the progeny of legal realism which basically says, "It's all bulls**t anyway, so use your englightened liberal ideas and positions of power to 'do the right thing.'" At the same time, realists counsel that you must deceive the public that you really believe there are nonideological criteria to decide issues related to the constitution, procedure, and judicial "qualifications."

Similarly, to show good faith, these same folks will criticize long after the fact the liberal decisions they now seek to enshrine, as if respect for precedent were more important than correct interpretation in constitutional law, and is if the very same people were not championing these decisions at the time they were enacted. Stone doesn't care about equality, privacy, or the influence of religious ideas on the Constitution when it leads to results he likes. He just cares about the advance of liberal progressivism--and the slaughter of fetuses it entails. Take his disingenuous remark about a woman's health. Does Stone mean to say that he would not support a partial birth abortion--however it is denominated--when a woman's health was not endangerd? I doubt it. It's just a debater's trick.

As I said above, the jig is up Stone. You're a dishonest propagandist at best and an embarassment to the law school.


Well, Mr. Roach, after a promising start you have slipped off into a fog of attacks on straw men and vilification of Mr. Stone, so I find nothing substantive to discuss. Here's hoping for a return to substantive issues!


Eras, I really don't think you understand what an ad hominem, straw man, or vilification is.

Not every generalization is a straw man, not every analogy is a "fog of attacks." It's not villification to describe Stone and others like him as a realist and also to explain the relevance of that classification for his views, his credibility, and the like.

In short, these open-ended applications of moral principles under the rubric of progressivism are the fruits of legal realism, and the undoing of those principles is a consequence of the judicial minimalism of conservatives, who would leave complicated moral questions like this to legislatures and the "consent of the governed."

I don't mean to psychoanalyze Stone, but it's clear as realist and a progressive he can't imagine someone questioning the obviousness of his moral views, including the ancillarly view that judicial power should be employed to advance the obvious morality of the pro choice position. Jutsice Thomas in particular strikes me as supremely principled, intimating his own discomfort with this law on the basis of a broader enumerated powers view of federal power, and ultimately leading to more abortions if a federal law like this were struck down on those grounds in spite of his Catholic moral views.


Well, then, Mr. Roach, if I'm too stupid to understand your comments, then clearly you aren't interested in my response -- so I won't offer one.

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