Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Geoffrey Stone, a very prominent legal scholar with the University of Chicago, has written what really should be an embarrassing bit of pseudo-scholarship about this week's Supreme Court ruling on partial birth abortion. That decision may be right or wrong and I'm more than willing to entertain arguments on both sides, but arguments like this are the kind of tripe that we would expect from a hack radio talk show host, not a serious legal scholar:
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.
Now, do I say that this is out of bounds because it necessarily amounts to anti-Catholic bigotry? No. Lots of religious right websites, including the ADF blog, are making that argument. But if, in fact, there was some evidence that their common Catholicism was instrumental in such decisions that would be a reasonable thing to point out. The problem? There is not only no evidence for that, there is positive evidence against it.
If Justice Kennedy, for example, was really influenced by his Catholicism to make this decision to combat abortion, which is faith teaches is wrong, then how in the world does Stone explain Kennedy's vote in Casey? Folks, Justice Kennedy is the only reason Roe v Wade still exists, as Jan Crawford Greenburg points out in this article:
He'd gone along with O'Connor and David Souter in Planned Parenthood of Pennsylvania v. Casey in 1992, when the three joined forces and refused to overturn Roe v. Wade.In Casey, Kennedy initially had cast his vote with Chief Justice William Rehnquist, who'd written an opinion that would have overturned Roe. At the last minute, he changed his mind and teamed up with O'Connor and Souter, providing the critical fifth vote that instead saved Roe.
This was an immensely important point in American legal history. Imagine the ramifications politically if Kennedy had gone with his initial vote in conference and stayed in the 5-4 majority to overturn Roe. But he changed his vote, not only in the face of his own party's position but in the face of Catholicism's anti-abortion stance. He's no more Catholic now than he was in 1992. If Catholicism was really a factor in his decision, there's no way to explain his earlier decision.
This reminds me very much of the absurd argument that Hugo Black was motivated to rule as he did in Everson because of his alleged anti-Catholic bigotry. But if that's the case, why in the world did he write a ruling that upheld a state law that bussed kids to Catholic schools? It was a 5-4 decision, he could just as easily have overturned a law that clearly benefited the Catholics. It's the same kind of search for an easy explanation and seizing on it even when it is clearly contrary to the facts that is sad to see from a scholar of Stone's eminence.
Comments
In this regard, it should be pointed out that the author of Roe was none other then Roman Catholic justice William Brennan. The point here is not that Roberts and Co. are Catholics but they are conservative Catholics, with emphasis on conservative. Many, of not most liberally minded Catholic politicians support choice (e.g. Kennedy, Kerry, Biden, Moran, Mikulski, etc.).
Posted by: SLC | April 23, 2007 9:44 AM
I don't think it's completely out of the question that Kennedy changed his mind over the past 15 years. It is quite a coincidence that all Catholics voted against the precedent and all non-Catholics voted for it. Had it happened an a case not related to Catholic dogma, no-one would probably have noticed. But it happening in a case crucially related to Catholic dogma suggests more than pure coincidence if only because the odds are so staggering. It's not a proof, I know, but the odds...
Posted by: Peiter | April 23, 2007 9:48 AM
Needless to say, the same Catholic justices all keep voting in favor of the Global War on Terror, despite intense Vatican disapproval of both the invasion of Iraq and the detentions in Guantanamo. The Church also opposes the death penalty. Etc. All one has to do is expand the frame a bit to see how empty the argument really is.
Posted by: kehrsam | April 23, 2007 10:00 AM
>He's no more Catholic now than he was in 1992.
And how do you know that? Do you know him personally to know that his personal devotion level has not changed?
Posted by: writerdd | April 23, 2007 10:08 AM
Yeah, well, I'm a Catholic and knowing the internal dynamis of The Church a little bit the theory doesn't seem beyond the pale ro me.
I can easily imagine a "this far and no more" dynamic informing some people's decisions (well, yeah, not everyone is Catholic, but this is just too far for my personal morality sort of thing); but I don't know that to be the case any more than you know that Justice Kennedy is no more Catholic now than he was fifteen years ago.
So, it does seem like a reasonable theory to me, if not an entirely reasonable conclusion from the set of known facts.
Is it anti-Catholic bigotry? I dunno, the same thought crossed my mind at the time and I'm not generally given to anti-myself bigotry.
Posted by: Lettuce | April 23, 2007 10:18 AM
First, let me correct an error in SLC's comment: Justice Harry Blackmun (a Protestant) was the author of Roe, not Brennan, who voted with the Roe majority.
On Geoff Stone's essay on the American Constitution Society blog, here's my take, as a constitutional scholar (not that that means much): Justice Kennedy did vote to uphold Roe in the Casey decision in 1992. But he did so, I think, for pragmatic (what justices call "prudential") reasons Overturning Roe at that time would have unleashed a horrific political firestorm, which Kennedy did not want to happen. Keep in mind that he first voted in Casey with Rehnquist, reflecting Kennedy's personal views on abortion, but changed his mind.
Also, if you read Kennedy's opinion in Stenberg, back in 2000, he makes very clear his moral revulsion at so-called "partial-birth" abortion, which he restated in the Gonzales decision. He's still opposed to abortion, but probably would still vote to uphold Roe in a case that directly attacks it. I don't think it is his Catholicism per se that affected his Gonzales vote (after all, Rehnquist, one of the two Roe dissenters, was a Protestant). But Kennedy also made clear in both "partial-birth" abortion cases that "morality" should be a factor in deciding constitutional cases.
In sum, I think Kennedy is a classic example of a justice whose faith-based views of "morality" are uneasily balanced with his "prudential" view of the dangers of upsetting long-established precedent like Roe.
Posted by: peter irons | April 23, 2007 10:23 AM
Because that explanation is so convenient and tidy, and that's all that matters to some people.
Posted by: Stuart Coleman | April 23, 2007 10:26 AM
Unless they come out and admit it, it will be impossible to know how much their Catholocism influenced the decision. However, one change since Casey that has not been mentioned has been the increasing willingness of the Vatican to get involved in the legislation and governance of other countries. Although there was some movement toward this stance with JPII was on the throne, and the current Pope, Herr Ratzinger, was head of the Inquisition, the rhetoric has really ramped up since Ratzi took over. The Vatican has repeatedly instructed all faithful Catholics to vote Catholic doctrine, no matter what the laws and traditions of their home countries. Of course, the only doctrine to be imposed from the Vatican has to do with sexuality, so the whole Iraq War fiasco is ignored. For example, when Spain first legalized gay marriage, the Vatican said that even Catholic clerks should not issue licenses, because of Catholic doctrine.
The question that has gone unanswered during this time, and I was infuriated it was not asked to the newer Catholic members of the Court, is whether Catholic politicians and judges will uphold the Constitution and ignore the instructions of the Vatican. Of course, this could lead to their excommunication, not to mention huge screams of "discrimination" from the likes of William Donohue, but it is vital the American people know whether their leaders are acting in obedience to a foreign leader. And I say this as someone who was raised Catholic.
Posted by: CPT_Doom | April 23, 2007 11:03 AM
Peter Irons wrote:
I think this is exactly right, and I would note that this is true of all justices (even the most allegedly formalist, who pretend to care only about the rigorous application of analysis regardless of the practical considerations). I would also note that this means that the nexus of decision making is considerably more complex than this silly "they're all just voting in line with Catholic doctrine" would suggest. As was pointed out above, some of the most staunchly pro-choice political leaders are Catholics, and those same justices whose decision is now being blamed solely on their Catholicism (or worse, on their "obedience to a foreign leader") are also those most likely to vote against Catholic doctrine when it comes to the death penalty, immigration and other issues.
Posted by: Ed Brayton | April 23, 2007 11:46 AM
Why is it that people assign more worth to certain justices votes? Justice Kennedy is not the 'only' reason that Roe v. Wade wasn't overturned. It was because he voted to uphold it with four others.
The decisions of some justices are more difficult to predict, but that doesn't make them any more important to the outcome. Granted, the unpredictable justices are much more interesting but they aren't any more important. Imagining what would have been if one justice voted differently is like imaging the world without say, Hitler. Interesting but pointless.
Posted by: David C. Brayton | April 23, 2007 12:50 PM
Given the frequent disparities between what the hierarchy says and what Catholics on the ground happen to believe or do, saying that someone is "Catholic" really doesn't predict much of anything. Hence the existence of pro-gay Catholics, pro-choice Catholics, Catholics who ignore Church teachings on birth control, Catholics who apparently have no problem with divorce or sex out of wedlock...The same is true of any religion, really--it's just that we assume that Catholics everywhere immediately defer to the hierarchy.
Posted by: Miriam | April 23, 2007 1:22 PM
David-
In this particular case I think my focus on Kennedy was warranted. He was the one who switched sides in Casey. Had he not done so, Roe would have been overturned. His changed vote in 1992 is, indeed, why Roe still exists.
Posted by: Ed Brayton | April 23, 2007 1:57 PM
Let's just call a spade a spade. This issue isn't about Catholicism in particular, but rather, the entire focus of most conservative christians. In recent decades conservative christianity has ratched up its political agenda to force its authoritarian ideology into the private lives of others through the instrusive powers of the state. That's how most of the conservative members of SCOTUS got their jobs in the first place.
Posted by: attotheobscure | April 23, 2007 7:42 PM
Hey, I want to be a Brayton, too.
Posted by: itchy Brayton | April 23, 2007 9:15 PM
This is a very good comment. Especially in light of the fact that pools last year showed catholics, most in the 90+ percentile disagreeing with the hierarchy on all the issues you list. It reminds of a comment I once read that the churhc is actually the people and not at all the dogma and hierarchy. I think they had it correct.
Posted by: GH | April 23, 2007 11:10 PM
I'll believe that the justices are voting their faith when Scalia writes an opinion banning the use of the death penalty
Posted by: ratel | April 23, 2007 11:29 PM
This is a great post, Ed. And as usual, very fair.
Posted by: John | April 24, 2007 1:11 AM
Frankly, the cited article is quite silly, but I'll mention only one thing. I have often derided Thomas J's jurisprudence, but it appears that he made the only jurisprudentially relevant point: that the advocates for the anti side did not even bother to argue the constitutional issue: under what power granted to the US government by the Constitution was the ban introduced by the federal government?
He stated that succinctly in his concurring opinion. And he said that, since that question was not presented to or argued to the court, he could not cast a vote on that issue. And so, he left that to further litigation.
This isn't over.
Posted by: raj | April 24, 2007 1:36 AM
There's no proof that Catholicism caused the vote, but you're not presenting any evidence to counter it either, despite your claim.
You show the Kennedy is on the fence about abortion and has been so for a long time. He may have a consistent position somewhere in between Gonzalez and Casey that prompted him to vote on the sort-of-pro-choice side on Case and the anti- side on Gonzalez. Or, he may be wavering around the margins of those two cases.
You an easily knock down this straw man: All Catholic Justices will always take the extreme anti-choice position; all Justices who do not, are not Catholic. But knocking down that strawman says nothing about the value of Stone's observation.
Posted by: Cos | April 25, 2007 4:59 PM
Cpt Doom writes:
Read US Constitution Article VI.
Then tell us, if you can, why such a question would not only go "unanswered", but why even asking it in any official hearing would be illegal.
Of course, a private individual such as yourself or any private group could raise the issue if they want to. However, since the question demonstrates anti-religious bigotry, I would be perfectly agreeable to having them - or you - being told to f**k-off.
Posted by: Poly | April 25, 2007 7:10 PM