Bench Memos

Professor Stone (again) on ‘our six Catholic Justices’

Prof. Geoffrey Stone returns, here, to the phenomenon of “our . . . Catholic justices.” A few years ago, after the Supreme Court rejected a constitutional challenge to the federal ban on partial-birth abortions, Professor Stone had caused some controversy with his assertion that the justices in the majority — all Catholic — had “failed to respect the fundamental difference between religious belief and morality,” a distinction that “[t]o be sure, . . can be an elusive distinction, but in a society that values the separation of church and state, . . . is fundamental.”

I responded, here (see also this), and disagreed. I thought, and think, that the majority was both reasonable and correct in concluding that the Constitution permits Congress to regulate abortion in the way that it did, and that their decision did not involve the imposition of specifically Catholic “religious belief.”

In his latest piece on the subject, Professor Stone’s presentation is (I think) less (to use his word) “inflammatory,” and more measured, than was his earlier one. He proposes a number of arguments, grounded in data about justices’ voting in abortion-related cases, intended to support, if not to “prove[]“, his initial assertion that the Catholic justices’ religion best explains their vote to uphold Congress’s enactment.

I’ll leave it to readers, for the most part, to assess these arguments, but would suggest that Professor Stone’s claims seem at least as consistent with the hypothesis that “non-Catholic justices are more likely than Catholic justices, in abortion-related cases, to give in to the temptation to impose their policy preferences and disable politically accountable actors through implausible readings of the Constitution” as with the hypothesis that “Catholic justices, in abortion cases, tend to rely on specifically Catholic beliefs and morality rather than on the Constitution’s meaning.” That is, the observation that Catholic justices tend to vote against the constitutionalization or expansion of abortion rights should raise not only the (in Professor Stone’s words) “awkward” question whether they are imposing their religious beliefs, but also the question, “Why are the non-Catholic justices more likely to get it wrong, when it comes to abortion?”


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