Last week at the University of Chicago Law School Faculty Blog, Geoffrey Stone posted “Our Faith Based Justices,” which received harsh criticism from many commentators, including me. Yestreday I had a short interview with Professor Stone, which will have a sequel, hopefully next week. Here is the excerpt concerning his post:
HH: I want to go to the controversy you’re involved in right now. You blog, you’re one of the professors who blog, and I and many others have been very critical of something you wrote on April 20th, and I’ll read it. It’s about the Carhart decision, Gonzales. And here’s what you wrote. “What then explains this decision [the partial birth abortion 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. 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.” Professor Stone, I thought that was bigoted. I just…I thought to raise the Catholic issue in that context was just…
GS: I think that’s absurd to say it’s bigoted. I mean, I would say the same thing if, for example, there were five African-American justices who took a position in a case where there was no sound, legal argument in support of the position, but had supported affirmative action or black reparations. I would say wait a minute, what’s going on here. If they cannot credibly be said to be applying traditional legal principles in a rational way, something’s explaining what they’re doing.
HH: Do you think they were applying catechism?
GS: No, no, no, no. I think they were seeing the issue through the light of their particular religious views, and confusing those with moral views, and I think that, in our country, where we talk about separation of Church and state, I think it’s very important for public officials, whether they be legislators or judges, to make a serious effort to separate their religious beliefs from their moral beliefs. And I think that this is a case where the justices, those five justices may have failed to do that.
HH: So if they didn’t separate their moral and their religious beliefs, they were applying catechism, in your view?
GS: I don’t know what it means to say applying catechism. But what I mean is I think that they saw the issue through the lens of their own personal experiences and beliefs, and those beliefs can be about religion, they can be about civil liberties, they can be about institutional judgments, about federalism. They don’t have to be about catechism or religion. But when you see a decision that’s not explainable in conventional legal terms, and you see a pattern of the justices voting in a way that just doesn’t make sense otherwise, you look for explanation.
HH: Why was it, in your own terms, mortifying to have to point it out?
GS: Well, because I think it did create exactly the kind of response that you stated, which is I knew people were going to say you’re being a bigot. And I’m quite certain I was not being a bigot. I would have said the same thing about black judges or Jewish justices. But the fact is I knew that was going to be the response.
HH: Why is it painfully awkward if it’s not bigoted to make the statement?
GS: Because people don’t want to hear it.
HH: Well then, it might be inconvenient, it might have caused debate, but painfully awkward and mortifying suggested to me immediately that you wanted the readers to consider that they acted as Catholics and not as justices upholding their oaths.
GS: I wanted to suggest that they acted as justices who allowed their religious beliefs to play too large a role in the way in which they resolve that particular case.
HH: So you really think their religious beliefs did play a role in that?
GS: Absolutely. That was the point of the op-ed. Exactly.
HH: Well, I’ll tell you, I’m not persuaded.
GS: You really think, do you really think justices are not influenced by their religious beliefs?
HH: I think if you had written all five justices in a particular case are Jewish, I don’t think you’d ever be on…I think you’d be a Don Imus moment. In fact, I think it’s close to Imus.
GS: Well, doesn’t it depend on whether the circumstances justify the observation?
GS: Well then, you’re just saying there are certain things we shouldn’t say, whether they’re true or not.
HH: No, I’m just saying I don’t think you can…we’re out of time. Next week?