Geoffrey Stone And The Slander Of Five Justices
Among Congress’s clearly erroneous “findings” were its assertions that no medical schools provide instruction on intact D & E, that intact D & E is never necessary to safeguard the health of the woman, and that intact D & E is less safe than alternative procedures. Each of these “findings” was and is false. In fact, many laws schools, including Chicago, Northwestern, Yale, Columbia, teach intact D & E; there is a clear medical consensus that in particular circumstances intact D & E is necessary to protect the heath of the woman; and there is a clear medical consensus that in particular circumstances intact D & E is safer than the alternative procedures. (emphasis added.)
So Stone’s obvious error tells us that he obviously wrote in haste –and I am the last person to hurl stones from my glass house when it comes to proofing. What is objectionable in Stone’s post is not the obvious and amusing error. (Ed Whelan caught it three days ago and it is still uncorrected.) No, Stone’s attack on the religious beliefs of the five justice majority is the reprehensible portion of his post.
To brand the five member majority in this case a “faith-based majority” is clearly just spleen, an invitation to the haters of faith, and an explosion of bigotry not seen in respectable circles for decades. It marks Geoffrey Stone as the Rosie O’Donnell of the law school world. (HT: K-Lo.) Justice Kennedy kept to his views in Casey and his dissent in Stenberg v. Carhart, and the Chief Justice and Justice Alito agreed with him. Justices Thomas and Scalia kept to their long-held views as well. The result was actually quite predictable. The shrill language and hyperbole employed by Stone undermines the “argument” he makes, just as Rosie advances every cause she opposes.
Stone is, in short, an inciter of religious bigotry. And an intellectually dishonest one at that.
When Stone wrote “[h]ere 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,” he employed a religious stereotype every bit as repulsive as the racial animus that informed Dred Scott or Plessy. He asserted that the five justices served their church and not their oaths. It was a low moment for academia, and I hope other professors join me in saying so, though I doubt very much that many will. In academia it is permissible to slander justices, but very risky to make the obvious observations about former deans.
At the University of Chicago Law School Faculty blog, Professor Rick Garnett has replied to Stone, and he deserves applause for doing so. But it is far too gentle a rebuke to Stone’s invitation to join him in slandering five justices.
No serious scholar of the Constitution would agree with Stone’s slash and burn attack on the justices. Not one. Look around the web in the days ahead and see who endorses his argument that a Catholic majority has seized the Supreme Court and is applying the Baltimore Catechism as opposed to the Constitution.
Geoffrey Stone is a bigot, and a vicious one at that. Few if any will rally to his view. But I fear that most if not all law professors will simply say nothing, which is an indictment of the legal academy.