Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
RECENT POSTS
MONTHLY ARCHIVES
« Previous | Main | Next »
“Faith-Based Justices”
April 23, 2007 5:07 PM
“You know what concerns me?” Rosie O’Donnell asked last week on ABC’s morning gabfest, The View.
“How many Supreme Court judges are Catholic, Barbara?”
"Five,” responds host Barbara Walters.
“Five. How about separation of church and state in America?” asks constitutional law scholar Rosie, after the Court’s sweeping decision upholding a federal law banning partial birth abortion.
Barbara counsels against drawing conclusions, saying “we cannot assume that they did it because they’re Catholic.” But the theologian in Rosie can’t help herself.
“If men could get pregnant,”Rosie opines, “abortion would be a sacrament.”
Good heavens. Where does one start? Perhaps with the law the Supreme Court interpreted. It was approved by a bipartisan congressional coalition that included the Republican and Democratic leadership. In all, 17 Senate Democrats voted for it, in addition to 47 Republicans, the vast majority—I think we can assume—who are not Catholic. You could say the five justices in the majority voted to uphold a law that reflected the choices of those legislators, not to mention the some 30 states that previously had imposed similar bans.
It’s not surprising that Rosie’s remarks have taken off like wildfire on talk radio, with conservative commentator Laura Ingraham leading the outcry. After all, it’s Rosie. This is the same person who shocked blacksmiths across the world with her declaration that September 11th was the “first time in history that fire has ever melted steel.” And the woman who implied that the terrorist attacks were an “inside job.” And the person who said “radical Christianity was just as threatening as radical Islam.”
But Rosie’s comments about last week’s 5-4 abortion decision aren’t as isolated as you may like to believe. Respected thinkers, including the former dean of my law school, are contributing to a growing anti-Catholic backlash over Gonzales v. Carhart.
Here’s what Geoffrey Stone, former law school dean and provost at the University of Chicago, had to say:
“All five justices in the majority in Gonzales are Catholic. The four justices who either are 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,” Stone wrote on the University of Chicago Law School Faculty blog. http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased_.html
And why is it telling, Dean Stone?
“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,” Stone writes. “By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.”
Geoff Stone (and Rosie and the cartoonist for the Philadelphia Inquirer who illustrated similar thoughts last week) is saying that the five justices voted to uphold the law only because of their religious beliefs. It’s only because they are Catholic—Stone, Rosie, et al, argue—that they could possibly interpret the Constitution to allow a federal law Congress passed with broad, bipartisan support. It’s only because the five are Catholic, Stone and Rosie argue, that they could possibly vote to uphold a law that banned an abortion procedure Congress found to be “gruesome” and “inhumane.”
No, the five couldn’t possibly have legal views that that the Constitution doesn’t protect the right to a partial birth abortion.
Here’s a different way of thinking about it: The five justices took a more restrained approach to the law than their colleagues and declined to substitute their own policy preferences for the will of the people.
Stone’s colleague Rick Garnett gets the better of him in a pointed, yet polite, response. http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased__1.html#more Stone “misses the mark,” Garnett says—even when he was talking about another Catholic Justice, William Brennan, who Stone says got it right.
Stone had clerked for Justice Brennan the year Roe v. Wade was decided. Stone notes that Brennan was the Court’s only Catholic in 1972-73 and that he “struggled…to separate his personal religious views from his views as a justice.”
But Brennan rose above it, Stone writes. 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.”
“It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example,” Stone concludes.
The separation of church and state?
That’s not how they taught First Amendment law when I was at the University of Chicago. Nor did they tell us to jump to baseless conclusions without any evidence—such as suggesting religion drove those justices. Or that different religious views influenced the protestant and Jewish justices to vote against the law.
Why not speculate that the five justices in the majority happen to like baseball--and therefore are more inclined to appreciate rules? That’s no less relevant or “telling,” as Stone put it, than their religious views.
And remember that Kennedy also refused to overturn Roe in 1992 in Casey, when he provided the key fifth vote to preserve a constitutional right to abortion. Four conservatives would have reversed Roe then: Rehnquist (Lutheran), White (Episcopalian), Scalia (Catholic) and Thomas (then Episcopalian/now Catholic).
Responding to Stone’s blog, Garnett also points out that the former Dean of his law school—while he’s praising Brennan for allegedly setting aside his religious views on abortion—doesn’t mention Brennan’s views on the death penalty. Brennan sharply opposed it.
“Was he, therefore, a ‘faith-based justice’ when he voted to strike down every death-penalty law in the nation?” Garnett asks.
Well?
April 23, 2007 | Permalink | User Comments (64)
You can follow this conversation by subscribing to the comment feed for this post.
OK, AFMCA, based on your medical expertise, explain why banning this particular approach to pregnancy termination is problematic, given that there are other ways to handle it? This method is appealing to the industry because it is cheaper and there is less risk of an infant born alive.
You can have any opinion you want about Roe and Casey, and still agree with Sen Moynahan that this one is roughly equivalent to infanticide, without it being because you are Catholic (I am most assuredly not).
Posted by: Kurmudge | Apr 24, 2007 4:39:40 PM
"By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality."
I tire of these all-knowing ones who continually think that just because a person has a belief or moral position based upon their religion it is invalid. It is entirely possible to view PBA as morally reprehensible and inhumane based solely upon scientific evidence of fetal development. What is the fundamental difference between believing that a viable fetus should not be subjected to indiscriminate destruction based upon its inherent humanity and personhood and reaching the exact same conclusion based upon a belief that the fetus has an immortal soul that is worth protecting? And are they both not moral conclusions worthy of discussion and action?
Posted by: submandave | Apr 24, 2007 4:45:15 PM
Ms. Greenberg is an extremely fair and objective journalist, perhaps one of the best mainstream journalists ever to cover the US Supreme Court.
I congratulate her for her excellent work, including her very informative recent book "Supreme Conflict", and I congratulate ABC News for its decision to hire Ms. Greenberg and to give her a blog in which she can address some of the absurd, extremist rhetoric that comes from such "illustrious cultural commentators" as Rosie O' Donnell. Keep up your great work!
Posted by: Kevin | Apr 24, 2007 4:59:37 PM
Stone is off the mark. And Rosie is...well...Rosie. But the 5 justices in the majority didn't do themselves any favors by introducing another convoluted abortion decision into the Supreme Court's incoprehesible abortion jurisprudence.
This law (like so many before it) should not have been upheld because of its "morality", but because, as you alluded to, it was passed by the people's constitutional representatives and if the people don't like it, they can get new ones to do away with it.
When conservative justice couch the language of their decisions in terms of subjective judgments about morality, it makes it all the more difficult to return to a rational jurisprudence based on the principals of federalism and the separation of powers set out in the Constitution.
Posted by: Matt | Apr 24, 2007 5:52:18 PM
What a surprise!!
A member of the MSM who takes a balanced, objective view of a tenet of left-wing theology.
Ms. Crawford may, or may not, agree with the decision on partial-birth;I don't care.
I'm just impressed with the refreshing (for a member of the MSM) clear-headed analysis.
Posted by: graywolf | Apr 24, 2007 8:03:00 PM
"If states are going to be allowed to set up more roadblocks to safe abortions, then those states should also be forced to provide adequate monetary support for the child that's eventually born." .....
The state does not currently reward parents for protecting their children -- to the contrary, it's a basic expectation. I can't imagine why it should be otherwise if the culture came to value unborn life too.
_________________________________
If the state takes the responsibility for deciding that "parents" must give birth to all fertilized eggs then mustn't the state also take on the financial consequences of that decision as well?
Posted by: kim | Apr 24, 2007 8:28:04 PM
Prof. Stone skips right from speculation to conclusion. It's as if he didn't read the opinion, or if he did, he believes the majority to be bald liars and simply using legal arguments to justify a religious holding.
Also, if his theory is correct, why would (lifelong Catholic) Justice Kennedy have voted with the majority in Casey?
Posted by: Joe Giles | Apr 25, 2007 12:13:37 AM
Catholics are 22 - 23 percent of the total population of the US of A. Yet Conservative Presidents have appointed 5 Catholics to the Supreme Court. If religion were a random factor in selecting Supreme Court judges you have 2 Catholic judges based on the per centage of Catholics in the general population. The present Supreme Court has 2.5 times as many Catholics as random selection would dictate. I could understand 3 Catholic judges but 5? Why do Conservative Presidents select Catholics? It surely isn't random.
Posted by: kim | Apr 25, 2007 8:56:17 AM
As a Catholic, I am glad to see the Supreme Court Justices make decisions that are in accordance with our faith. I wish Ted Kennedy and John Kerry would do the same.
Posted by: Richard | Apr 25, 2007 10:10:30 AM
I am a Roman Catholic and a University of Chicago alumnus. I find it distressing, but not surprising, to hear that Provost Stone would once again allow his political beliefs to override any sense of what a prudent person might say. If he had made this remark about certain other faiths or minority groups, he would have been called upon to resign. I will be letting my alma mater know of my deep dissatisfaction with the provost's statements.
Posted by: John David Flanagan | Apr 25, 2007 12:20:42 PM
The present Supreme Court has 2.5 times as many Catholics as random selection would dictate. I could understand 3 Catholic judges but 5? Why do Conservative Presidents select Catholics? It surely isn't random.
Kim, maybe I'm not jaded enough in our rather cynical world, but maybe, just maybe, presidents choose their Supreme Court nominees based upon their potential to be good and fair jurists. That they happen to be Catholic is something that just goes along for the ride.
And oh, by the way, I don't think I would describe Justic Kennedy as a "conservative," even if he was nominated by President Reagan. His opinion in the Carhart case was extremely narrow and really did little to weaken the Casey decision (which he authored), which arguably puts the abortion license on stronger grounds in this country than Roe did.
Posted by: Sean Gallagher | Apr 25, 2007 12:36:28 PM
"The present Supreme Court has 2.5 times as many Catholics as random selection would dictate. I could understand 3 Catholic judges but 5? Why do Conservative Presidents select Catholics? It surely isn't random.
Kim, maybe I'm not jaded enough in our rather cynical world, but maybe, just maybe, presidents choose their Supreme Court nominees based upon their potential to be good and fair jurists. That they happen to be Catholic is something that just goes along for the ride."
You don't need to be jaded or cynical to understand the statistics. If there was no selection bias toward Catholics the number of Catholics on the Supreme Court would be 2. It would be surprising but not out of the relm of possibility to have 3 Catholics on the Supreme Court. But when 5 Catholics are seated, which is 55% of the total SC, and the per cent of Catholics in the nation is 22% selection for Catholics is relevant.
Do you think that being Catholic makes you 2.5 times as likely to be a "good and fair jurist" as any other religion?
Posted by: kim | Apr 25, 2007 1:28:59 PM
Mrs. Greenberg's observation are as astute and insightful as they are winsome.
Posted by: Minson | Apr 25, 2007 1:52:49 PM
Small correction to Jan's post regarding Thomas' faith. He has always been a Catholic. He in fact even attended a seminary to become a priest prior to going to law school. He started going to an Episcopalian church with his second wife. I am not sure what his status is now. I don't even know if there is a huge difference between a Catholic and an Episcopalian.
Posted by: Hirbod | Apr 25, 2007 1:56:32 PM
Sean:
"Why do Conservative Presidents select Catholics? It surely isn't random."
My recollection is that Bush 43 tried to select an evangelical before that nomination disintegrated on contact with reality (as is compellingly retold in Jan's book, BTW) and he nominated a 2d catholic. Bush 41 didn't nominate any catholics: Thomas converted long after his appointment. Reagan appointed two catholics out of four nominees, and I'm honestly not sure what Robert Bork's and Douglas Ginsburg's religions are. The same caveat to Reagan's nomination of the catholic Kennedy applies to Bush 43's nomination of the catholic Alito: Kennedy was not Reagan's first choice. So I'm not sure that your premise (that Conservative Presidents select Catholics) is right from the outset, which increases the odds that it's just an accident of history. My preferred next pick for the Supreme Court is Judge Sykes of the 7th Circuit, and so far as I know, she's a catholic, but I wasn't really aware of that when I first started looking at her work, and it didn't make any difference to me when I found out.
Posted by: Simon | Apr 25, 2007 5:13:23 PM
Jan, thanks for your great commentary. I appreciate your ability to see that Rosie's comments are about cynicism and conspiracy theories and not politics. Thank God she is not renewing her contract. I'm tired of her hate -- regardless of politics
Posted by: Bruce | Apr 25, 2007 5:38:23 PM
The whole notion of saying it's bad to have five catholics on the Supreme Court when they are only 22% of the nation is absurd. If you stick with that twisted, sophistry line of reasoning, then what's that lead to to say about there being two jewish justices when they are only 1% of the nation?
It's also correct to say that Catholics are Christians and Christians make up 80% of the nation. So looking at it in that way, they are close to their proportinate share.
The truth is that this whole absurd complaint by the left about Catholics and partial birth abortion is nothing but the squeal of a losing pig (an especially fat losing pig at that).
Posted by: Joe | Apr 25, 2007 5:51:23 PM
"So I'm not sure that your premise (that Conservative Presidents select Catholics) is right from the outset, which increases the odds that it's just an accident of history. My preferred next pick for the Supreme Court is Judge Sykes of the 7th Circuit, and so far as I know, she's a catholic, but... "
An accident of history might, if you stretch coincidence to the limit, account for 3 Catholic Supreme Court Judges but 5 is far beyond anything accidental.
I assume that your desire to find this an accident of history, like my deep uneasiness, is caused by the implications of these numbers as well as the fact that all 5 Catholic judges were selected by Conservative presidents.
By the way, Thomas has always been a Catholic.
Posted by: kim | Apr 25, 2007 6:59:54 PM
I did not know distinguished scholars believed that justices' votes should be analyzed
Posted by: BK | Apr 25, 2007 8:07:50 PM
Kim, I guess I just don't understand your premise for why three catholics on the court might be accidental, but five surely can't be. Why not? I think that you're making the mistake of comparing the demographics of the court to society at large, rather than to the demographics of the pool of potential nominees. Consider it this way: suppose (and I have no idea if this is true) legal conservatives are disproportionately catholic. I mean, maybe George Kannar was right in that famous paper about Scalia that there's something about catechism that predisposes a person towards formalism, and legal conservatives are, in the main, legal formalists. Well if that's so, assuming that conservative presidents are going to pick legal conservatives, if the pool of possible candidates is disproportionately catholic, the nominees are going to be, in the aggregate, disproportionately catholic.
BTW, Justice Thomas might have been a catholic in his younger years, and has certainly converted (or reconverted, I don't know what the terminology is) since joining the court, but he was not a catholic when he was nominated, which is the relevant point. Per WP: "Raised Roman Catholic ... [Thomas] later attended an Episcopal church with his wife, but returned to the Catholic Church in the late 1990s[.]"
Posted by: Simon | Apr 26, 2007 12:07:35 PM
Post a comment
