By Robert Barnes
Washington Post Staff Writer
Monday, April 30, 2007
Is it significant that the five Supreme Court justices who voted to uphold the federal ban on a controversial abortion procedure also happen to be the court's Roman Catholics?
It is to Tony Auth, the Pulitzer Prize-winning cartoonist for the Philadelphia Inquirer. He drew Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. wearing bishop's miters, and labeled his cartoon "Church and State."
Rosie O'Donnell and Barbara Walters hashed out the issue on "The View," with O'Donnell noting that a majority of the court is Catholic and wondering about "separation of church and state." Walters counseled that "we cannot assume that they did it because they're Catholic."
And the chatter continues, on talk radio and in the blogosphere. In the latter category, no one has stirred it up quite like Geoffrey R. Stone, former dean and now provost of the University of Chicago's law school.
He posted an item titled "Faith-Based Justices" on his school's blog and on Huffington Post. The post was mostly praised by liberal readers at Huffington Post, but set off a free-for-all back home in Chicago on the faculty blog.
Stone's argument was that the decision in Gonzales v. Carhart repudiated the court's previous abortion jurisprudence and offered flimsy reasoning for upholding the federal ban on the procedure opponents call "partial birth," when seven years ago it had rejected a Nebraska law that was "virtually identical."
"What then explains this decision?" he wrote. "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."
In finding that there was a moral reason for upholding the ban, Stone added, the majority failed "to respect the fundamental difference between religious belief and morality."
Stone was immediately hooted down, blogospherically, for faulty logic, "religious bigotry" and failing to note anything from the majority opinion that would indicate the justices relied on religious belief, rather than their interpretation of the law, to uphold the ban passed by Congress in 2002. That ban, they noted, was approved by substantial and bipartisan majorities, made up of Catholics and non-Catholics.
And last week, four of the five Catholics were in the court's minority in voting to uphold death sentences in three cases from Texas. Capital punishment is another issue to which the church is opposed, although it hasn't held the same political currency as abortion.
Mark Silk, a professor of religion in public life at Trinity College, said any discussion of religious beliefs and public policy carries the potential for strongly held views.
Speaking generally rather than to the case at hand, Silk said Americans want balance in their public officials. "We want people of faith, but we don't want them making decisions based on their faith."
Stone said in an interview that his post "certainly stirred up more attention than I expected. But I meant it to be provocative."Courting Alito
Both sides in last week's oral arguments over the McCain-Feingold campaign finance law did everything but shine Samuel Alito's shoes to get the attention of the justice most likely to decide the issue.
Solicitor General Paul D. Clement used his closing to directly address a concern that only Alito had raised earlier in the arguments.
But James Bopp Jr., representing the challengers to the law, went all out. He urged the justices to develop a test that would allow the kind of "grass-roots lobbying" ads his group wants.
"It would have to be clear, simple, and objective and be able to be implemented on short notice, because things pop up, like the filibuster of a Supreme Court nominee in January of 2006," Bopp said.
Who could that be?