The Supreme Court often passes off untruths as facts in its decisions. Mark Joseph Stern writes about it at Slate, building on Adam Liptak’s recent New York Times story on it. Neither author, unfortunately, cites the best example of false claims in modern jurisprudence, the account of the history of abortion laws in Roe v. Wade. Even more unfortunately, Stern’s discussion itself passes off a number of untruths as facts.

Stern writes:

Justices already set on a particular ruling may contort facts—outside data, or even facts about the case itself—to support their judgments. In perhaps the most infamous example of this chicanery, Kennedy wrote in Gonzales v. Carhart that abortion may sometimes be banned to make women comprehend their “ultimate” role as mothers. In support of this proposition, Kennedy held that “some women come to regret their choice to abort the infant life they once created and sustained.” How does he know? A study? A poll? In fact, Kennedy admitted that “we find no reliable data to measure the phenomenon.” (One reason he couldn’t find any reliable data: That “phenomenon” is nothing more than a chauvinistic shibboleth, as most women don’t regret their abortions.) The court, in other words, couldn’t locate a real rationale for restricting abortion—so it had to make one up.

It is unquestionably true, of course, that “some women come to regret” having abortions, whether or not it’s “chauvinistic” to say so. The survey to which Stern links, which finds that most women do not express regret one week after their abortions, is consistent with Kennedy’s claim. “Most” and “some” mean different things, which is why Kennedy characterized his observation as “unexceptionable.” And of course Kennedy’s opinion identified other possible rationales that legislators may have had to restrict partial-birth abortion. It concluded that legislators may constitutionally act on those rationales, not that they should act on them.

Stern continues:

Alito recently adopted Kennedy’s sexist magical thinking in his misogynistic Hobby Lobby opinion. Throughout the ruling, Alito callously dismisses the needs of Hobby Lobby’s female employees, instead lavishing praise on its owners’ devout Christianity. The company’s founding family, Alito writes, “have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.” Apparently, those five words—“according to their religion (sic) beliefs”—are enough to convert fiction into fact, because the contraceptive methods in question are absolutely not abortifacients. Alito dismisses the science, shrugging that “it is not for us to say that their religious beliefs are mistaken.”
When justices pull these sleights of hand, their dissenting colleagues rarely call them on it; they may, after all, need to perform the same trick in the future.

I’ll leave aside Stern’s assertions that Alito’s opinion was “sexist,” “callous,” or praise-lavishing, since he backs them up with nothing. And Stern is wrong to suggest that a 1989 paper about IUDs establishes that none of the disputed contraceptives can cause the death of human embryos in some cases. Even opponents of the Hobby Lobby decision have conceded that they can.

Anyway, Alito is quite right to deny that the Court has any business passing judgment on the validity of a religious objection to performing a particular act. If Catholics were in court seeking an exemption to a law prohibiting alcohol, the Court would not need to determine whether sacramental wine becomes the blood of Jesus to rule on the matter. In applying the Religious Freedom Restoration Act, the Court’s “substantial burden” inquiry need only determine whether the government is imposing a burden on the objectors because they refuse to take an action they consider incompatible with their religion (or because they take an action they consider obligatory under their religion). Any meaningful protection of religious liberty will be neutral in this fashion about the content of religious belief. It is because this point is so obvious that none of the other justices attacked Alito on the lines that Stern does. Alito is certainly not guilty of any sort of “sleight of hand.”

Stern then turns to Justice Scalia, who supposedly

is not always so faithful to reality. When the court ruled on a complex DNA patent case, Scalia wrote separately to note that he wasn’t sure the details of “molecular biology” comported with his own beliefs. He also signed on to both Kennedy’s muddled anti-abortion cri de coeur and Alito’s Hobby Lobby disaster, suggesting that he’s perfectly comfortable with made-up facts when they lead him to a result he favors.

In the patent case, Scalia was perfectly faithful to reality. He merely noted that the Court could decide the case without reaching a definitive judgment on some aspects of reality. And neither of the opinions Stern once again attacks rested on, or even involved, any “made-up facts.”