Saturday Editorial
The editorial responds to criticism of the Court's decision in Gonzales v. Carhart, in particular, the various suggestions that the Court's majority made its decision based on its Catholicism and not the law.
The heart of the editorial is these two paragraphs:
The editorial loses focus at the end, but I found it convincing. The anti-catholic accusations impugn the integrity of five people who took oaths (no doubt on Bibles!) to uphold the Constitution. Such accusatons also undermine the credibility of the Court. Finally, such accusations smack of religious bigotry.Playing the religion card is worse than silly because it shows how intellectually lazy the liberal defense of Roe has become. There are many reasons why the Court upheld the federal partial-birth abortion law, but not a state ban that it struck down in 2000. The Court found the state law too vague, while the federal law is more specific about the prohibited procedures. The Court may have been demonstrating more respect for the judgment of Congress than that of the states. Or the Court may have been following public opinion: Polls show that a majority of Americans agree with the partial-birth abortion ban. Almost two-thirds of the Senate, including Democratic Sens. Patrick Leahy and Harry Reid voted for it. Four years ago, today's critics didn't ask whether Mr. Leahy's and Mr. Reid's votes were inspired by their Catholic or Mormon faiths.
Rather than develop reasoned responses to the Court or the arguments of conservatives, liberal critics resort to the mystical for easy answers. They suggest that irrational religious faith or pure Catholic doctrine handed down from the Vatican drives the Justices. It is much easier to dismiss your opponents as driven by mysterious forces than to do the hard work of developing arguments built on human reason. This religious critique recalls the nativist fear of Catholicism that too often appears in U.S. history. Senate Democrats appealed to the same bias when they filibustered judicial nominees for their "deeply held" religious beliefs, as Sen. Charles Schumer said of now-circuit judge William Pryor.
That aside, the editorial does call out critics of the decision as "intellectually lazy." I recall the comments thread here being quite active after this decision (and without a post to fuel it), so I thought I'd use this editorial as a jumping off point for people to discuss the editorial, the validity of the criticisms, and the merits of the decision.
Labels: Yoo-Hoo
posted by Tom Fletcher at 5:47 PM
12 Comments:
Professor Yoo & Mr. Fletcher seem to have had a meeting with Dr. Strawman.
Who are all these famous and important liberals with their "various suggestions" that the decision was motivated by Catholicism? Why, an ex-dean at Chicago dean writing on his blog, and someone named Barbara Kavadias speaking for an organization called the "Religious Coalition for Reproductive Freedom," whose own press releases say no such thing. Oh, I almost forgot--noted constitutional theorist and respected pundit Rosie O'Donnell.
Talk about Q-E-fucking-D!
Back on planet Earth, the rest of the left has criticized the decision on all manner of grounds that have nothing to do with the Justices' Catholicism. The only thing "intellectually lazy" here is the WSJ op-ed page, pretending this is a coherent argument made by anyone but these three people.
This is not a surprise, of course, given that almost every left-of-center outlet recognizes the WSJ op-ed page as the most dishonest forum in all of journalism. This argument, like so many others, is filled with enough straw to keep Truckee heated for a year.
"Or the Court may have been following public opinion:"... I thought the Court was not supposed to follow public opinion...
I was surprised that Leahy and Reid voted for it, so I took a look at the votes. In the House it was 281-142-12. Among Democrats, the vote was 63-137-5. In the Senate the total vote was 64-34-2. Among Democrats, the vote was 17-30-1 (with the abstention being Edwards, who opposed it).
So, almost 1/3 of Democrats voted in favor of the bill. Is this because Democrats are not as uniformly pro-choice as commonly believed? Is the procedure here (D&X) simply so "different" from more common abortion procedures that some politicians deviated from their usual pro-choice stance? Or, were some Democrats trying to cozy up to moderate-conservatives prior to the 2004 election (keep in mind not everyone hated Bush back then)? It's worth noting that, at least in the Senate, most (though not all) of the Democrats voting yes were from generally conservative states.
anyway, curious if someone smarter than me has answers to those questions...
Max, if I recall, Reid's been pro-choice all along. As for everyone else, i think you're right on. Democrats running in conservative states had to neutralize a potentially devastating issue (or are themselves pro-life) and so voted for the procedure.
E-Dub, I appreciate the drub. Just trying to start a discussion. One of the most interesting issues the case raisedin my mind was: how should courts respond to legislative findings of fact? What about when the findings of "fact" are nothing but fiction? It'd make a good note. My gut feeling (i.e., without much close analysis) is that courts have to reexamine "findings of fact." Maybe deferentially, but I don't think the legislature shoudl be able to dictate factual findings. As a hook for this analysis, I point to the post-Civil War pardon case where Congress passed a law preventing courts from considering a presidential pardon in assessing an ex-Confederate's loyalty.
Anon, 6.43, there's the rub. The Court is counter-majoritarian. Should its understanding of the law evolve with what the people think? In 8th amendment jurisprudence, this is (more or less) the law. In other areas though, this is the fraught challenge between allowing the people their "constitutional moments' and continuing the existing law.
I was under the impression that the Court usually deferred to the legislature when it came to findings of fact, even when viewed as seemingly fictional. The only cases I can think of offhand are Williamson v. Lee Optical and Ferguson v. Skrupa. In Ferguson v. Skrupa (state legislation re: debt adjusting), the Court said that questions regarding the actual social utility of the legislation should best be left to the legislature, not to the courts. Maybe there's a more recent case (this was in 1963), but it seems to me that it says the Court won't take into question whether or not facts exist supporting the social utility the legislature claims the statute will create. I'm pretty sure the courts laid this idea down previously in Day-Bright Lighting v. Missouri.
Either way, the courts aren't equipped to make a finding of fact in the same manner as the legislature... if people have issue with the finding of fact, organize and vote.
Yawn.
What's interesting is that someone who is widely regarded as a likable professor, scrupulously non-political in class, generous with time, receptive to students with different viewpoints, and a good teacher could write such intellectually dishonest, hyperbolic drivel. I mean, at least the torture memos were in service of a government client (however misguided). This, by contrast, is just silly.
Link to full article: http://www.opinionjournal.com/editorial/feature.html?id=110010004
Tom and Max, Sen. Reid is not pro-choice. He is an anti-choice Democrat. He is very open about the fact that he is anti-choice.
http://www.aclu.org/reproductiverights/abortion/28033leg20070122.html
This comment has been removed by the author.
Thanks 9:58, though that article didn't seem to indicate that Reid was anti-choice. But I checked out NARAL's ratings, and Reid got 20% in 2004.
Andy--you need to read U.S. v. Lopez and U.S. v. Morrison. Here's a summary of Rehnquist's majority opinion in each:
Lopez: Congress, you need evidence that carrying guns near schools affects interstate commerce.
Morrison: Congress, we don't care that you spent years collecting evidence, we don't think violence against women affects interstate commerce.
Obviously that's a simplification, but the point is that the Supreme Court does not always defer to Congressional findings of fact. It seems that deference is only due when the individual Justice agrees with what it is that Congress finds. It is a challenge for any Justice to coherently explain where s/he has chosen to defer, and where s/he has chosen not to defer.
As for courts making their own findings, it is not at all clear that they are less equipped than Congress. In this case, by many accounts the district courts' factual investigations were far more comprehensive than that done by Congress. And, as Justice Ginsburg points out, Congress and the Supreme Court have approved the notion that appellate courts defer to lower courts' factual findings, unless clearly erroneous. See Fed. Rule Civ. Proc. 52(a); Salve Regina College v. Russell, 499 U.S. 225, 233.
And just for fun, here's a quote from then-Judge Thomas to sum things up: "We know of no support ... for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature's judgment that the facts exist. If a legislature could make a statute constitutional simply by 'finding' that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison ... that has not been the law." Lamprecht v. FCC.
And 10:42 PM--Abortion. Yawn. Definitely.
Fletcher brings up a huge point. How did the court get around their jurisprudence on how courts should regard congressional findings of fact? Hand-waiving and side-stepping.
The precedent cases argued in the Circuit courts below and in the briefs to the USSC were Turner Broadcasting System v. FCC (“Turner I”), 512 U.S. 622 (1994) & Turner Broadcasting System v. FCC (“Turner II”), 520 U.S. 180 (1997).
The standard these cases set out was basically that courts must defer to Congressional findings of fact when “Congress has drawn reasonable inferences based on substantial evidence.”
However, in Stenberg, 530 U.S. 914, when the court ruled on a Nebraska abortion statute that was nearly identical to the federal statute, the court concluded that, per Casey, a health exception is required in abortion statutes.
So, in drafting the Federal Partial Birth Abortion Ban Act Congress concluded that the banned procedures were "never medically necessary." (If it’s never necessary, then the Stenberg requirement is useless.) Congress made this conclusion based on the facts presented in the testimony of a few anti-abortion doctors and a few reports from anti-abortion groups.
So, now the question before the Court in Carhart was whether this finding that the banned procedure was "never medically necessary" was a "reasonable inference based on substantial evidence?" If the Court would have said yes, they would have stripped themselves of power in the future to tell Congress not to be ridiculous. So, what did the Court do? It magically avoids the issue all together. How?
Well, first, it completely failed to mention the Turner cases argued so extensively in the courts below and basically avoids the question all together. Instead, the Court concluded that the lower courts and the attorney’s arguing the case were simply wrong to have ever entertained the idea that a facial attack to the statute was appropriate in the first place. As I understand it, because so few women will be affected by the lack of a health exception, that in their cases the litigation should begin with an “as applied challenge.” The consequences? Legally: we’ll be seeing this “as applied challenge” in courts soon. Reality: Exercise of right to choose chilled out of fear of doctors being prosecuted.
Brilliant. Court retains power. Men in robes and suits and ties retain paternalistic relationship with women in this country. Women lose right to choose. Unwanted children brought into this life. Already broken foster care system strained further. Everyone is a winner!!!
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