Professor Stone Sullies the Pages of the Chicago Tribune
By AndrewHyman Posted in Analysis and Predictions — Comments (7) / Email this page » / Leave a comment »
A few days ago, I mentioned Geoffrey Stone's suggestion that the five Catholic Supreme Court Justices have imposed their religion on the country, via their recent partial birth abortion (PBA) opinion. Professor Stone took his disgraceful suggestion to the op/ed pages of the Chicago Tribune today:
All five justices in the majority in Gonzales are Roman Catholic. The four justices who are not all followed clear and settled precedent. It is distressing to have to point this out. But it is a fact that merits attention. In similar circumstances, where a decision could not credibly be explained in terms of traditional legal analysis, the same sort of observation would be appropriate and necessary if five Jewish justices disregarded precedent to vote in favor of the interests of Israel or five African-American justices disregarded precedent to vote in support of black reparations.
It is very common for Supreme Court minorities to believe that the Supreme Court majority has not followed clear and settled precedent. Yet, for hundreds of years, the Supreme Court minority has somehow managed to refrain from accusing the majority of being religiously motivated robots. Professor Stone is making insinuations here that are more befitting of religious bigots in Iraq than law professors in the United States.
Even if the majority in the PBA case were departing from clear and settled precedent (and I will shortly show that they were not), clear and settled precedent sometimes conflicts with the Constitution, just like statutes sometimes conflict with the Constitution. It is then the sworn duty of the Supreme Court to enforce the Constitution rather than to enforce the unconstitutional precedent (just like the Court sometimes must enforce the Constitution against unconstitutional statutes). As the Court itself once explained: "when convinced of former error, this Court has never felt constrained to follow precedent." In the United States, Professor Stone, the Constitution is superior to statutes, and the Constitution is also superior to erroneous precedents.
In any event, the recent PBA decision was very consistent with precedent. Here's how Benjamin Wittes explained that precedent today in the New Republic:
The Court majority, following the path it sketched out last year in the New Hampshire case, decided to let the law stand as a facial matter and let the parties fight later about what, if any, applications need to be blocked.
Professor Stone's insinuation of Catholic bias on the Supreme Court is hugely wrong and counterproductive, and is much more insulting to Professor Stone himself than it could possibly be to the Supreme Court. The Court certainly deserves to be insulted for various reasons, from time to time, but not because it is under the thumb of the Vatican.
Hillary weighs in...
by Kenneth
The Dem/liberal hysterical
by BillM
The Dem/liberal hysterical overreaction to this case should be ahuge boon in '08.
More Moral Cowardice From "Conservative" Leaders!
by bigskybob
Here's a real conservative answer to those who criticize our Catholic judges:
"Maybe it isn't a coincidence that the Catholic judges voted fundamentally differently than the Protestant, and Jewish Judges, and that difference is to the credit of the Catholic Church!
"The issue of abortion is a question of what obligations parents have to their children. The proper viewpoint is that the obligation of parents is to see to the good health and proper education of their children. Killing children before birth is antithetical to that obligation. Those that oppose such killings, barring extraordinary circumstances, as there are such extraordinary circumstances regarding the killing of born human beings, are taking the morally correct position. Those that support such killings are taking the morally incorrect position. In fact, supporting fetal homocide raises the question as to whether, or not, that person is morally defective: unable to properly decide right from wrong.
"The Catholic Church believes in the Aristotlian concept of moral training. It premises that morally sound children are the products of same techniques that develop strong caliber figure skaters, and such: training, practise, coaching, repetition and drill.
"Perhaps it not coincidence. Perhaps, when faced with a moral dilemma, the Catholic justices took a better position precisely because the Catholic Church provided with a proper moral education."
The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand prinicpled conservative leaders for their movement.
BSB - uh, NO!
by MF
First, it is not the place for SCOTUS to make rulings based on beliefs, as valid as any particular beliefs may be. Rulings are to be based strictly on what is written in the US Constitution and its amendments (which are really part of the Constitution). One's beliefs have ZERO basis, as much as you'd like. The moment one's beliefs enter into the ruling, you have created an activist judge. That's exactly what the liberals want!
And besides, we are not going to go down the path of whether the Catholic Church's positions are right, wrong, up, down, black or white. Start that discussion, and as Chandler Bing ("Friends") said (paraphrasing?), "Can - open. Worms - everywhere."
MF Takes His Turn Advocating Cowardice
by bigskybob
First, your claim that "it is not the place for SCOTUS to make rulings based on beliefs," is both wrong, and bigoted.
Look, we live in one of three metaphysical realities. The first is that Jesus Christ rose from the dead, ascended into heaven, etc., etc. If we live in that metaphysical reality, then excluding Christian thought from public policy debate is an utter denial of reality.
On the other hand, the second possible metaphysical reality is that Jesus Christ was just a man, was cruxified, and was buried, end of statement. Under that metaphysical reality, he was just another man who advocated just another moral theory, like Nietze, Marx, Kant or Rawls. In that metaphysical reality, there is no logical, or rational, reason to exclude his moral theories from consideration, or exclude his moral theories from being the basis of a proper sense of justice. In such a metaphysical reality, Jesus Christ's moral theory should be free to compete with the moral theories of Rawl's or Marx in the marketplace of ideas. Let the best ideas win!
The third possible metaphysical reality is that there is a supernational world of gods, or ghosts, but the Christian metaphysical viewpoint is false. Under that reality, the Christian metaphysical viewpoint would be false, but so would be the secular viewpoint! First, it would behoove us to find the proper understanding of the supernatural world. And, second, even if were true that the Christian metaphysical viewpoint was false, it would still be possible for the moral theories of Jesus Christ to be completely correct.
So, under all three possible metaphysical realities, your statement doesn't make sense. Technically, it doesn't make sense because the correctness of metaphysical theories, and the correctness of moral theories are orthagonal. Practically, your statement is a reflection of your frustration that others may have intractable opposition to your position!
Second, your claim is simply counterfactual. The notion that the Constitution is some omniscient document whose meaning is clear as day to the objective and dispassionate reader, and whose omniscient will will spring forth from its text is a theory right out of some bad Ayn Rand novel! A good judge must both have a proper understanding of the law, and the Constitution, but, also, a proper set of moral sensibilities.
As to your statement,
"we are not going to go down the path of whether the Catholic Church's positions are right, wrong, up, down, black or white.."
First, you only speak for yourself. So, it is only proper for you to claim that "I" prefer not to, or "I" will not go down that route. And, second, denigrating the entire Catholic viewpoint is simply too great of a price to pay to avoid having to tackle the hard intellectual question! If the Catholic viewpoint is better and truer than others, its intellectual superiority should triumphant. If is not, its should fail to a superior viewpoint. Let the marketplace of ideas decide.
As to your diatribe against "activist" judges. It makes no sense. The correct conservative position is to support judges that,
1) respect the proper role of the Court, and,
2) when deciding cases properly before the Court, take the conservative position in cases in which there is a genuine question.
Challenging both the liberal and activist assumptions of liberal judicial activists isn't "giving liberals what they want!" It is, correctly, noting they are wrong in both form and substance.
The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand principled conservative action.
Stone made a rash statement and now is stuck trying to explain it. It does not appear that he truly anticipated the backlash his statement created. Now he is desperately floundering about trying to find some justification for his bigoted comments: "Oh, I said A, but maybe it's not A, maybe it's B; no, I was trying to be provocative; no, I was just telling the American public something they didn't want to hear." I wonder what the next excuse will be for his bigotry.