The Retirement of Justice Stevens, Q.E.D.

Much has been made how Justice Stevens’ retirement will leave the Supreme Court without a single Protestant justice.  Perhaps more significantly, his departure will also leave the Court with only one Mid-westerner (Roberts), and no Cubs fans.

 

Yesterday morning Chicago public radio broadcast a delightful story recounting Stevens’ family history and deep Chicago roots (available here).  It should come as no surprise to learn that Justice Stevens has many admirers in this town.  And I confess to having heard nothing but good things about Justice Stevens as a person – that he is an affable man, an avid golfer and an enthusiastic bridge player.  I don’t doubt his good faith in the service he rendered to the nation, and I wish him well in his retirement.

 

When I think of Justice Stevens as a judge, however, I think of his opinions in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986) and  Webster v. Reproductive Health Services, 492 U.S. 490, 560 (1989).  In these opinions Stevens claimed that the attempt to grant unborn human beings the protection of legal rights was inherently religious and thus unconstitutional. 

 

In Thornburgh Stevens said that he “recognize[d] that a powerful theological argument [could] be made” for the position that the government’s interest in nascent human life remains the same throughout pregnancy but that “our jurisdiction is limited to the evaluation of secular state interests” (at 778).  He insisted that “there is a fundamental and well-recognized difference between a fetus and a human being” that will continue to hold sway “unless the religious view that a fetus is a ‘person’ is adopted” (at 779).  Of course Stevens never explains why the belief that a nascent human life should enjoy the protections of personhood is “religious” or “theological.”  He merely assumes the point and then employs his assumption rhetorically in order to dismiss an argument he never squarely confronts.

 

In Webster Stevens sought to bolster the claims he made in Thornburgh.  And so we are treated to this gem:

 

I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble [to the Missouri statute in question] invalid under the Establishment Clause . . . .  This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions . . . .  Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths, serves no identifiable secular interest (at 566-67).

 

Did you get that?  The statute, which declares that “[t]he life of each human being begins at conception” and that “[u]nborn children have protectable interests in life, health and well-being” (at 504) violates the Establishment Clause because of the “absence of any secular purpose” that follows from the fact that it “serves no identifiable secular purpose” (at 566-67).

 

The remainder of the Stevens’ opinion is replete with references to the “theological view” endorsed by the Missouri statute (at 568), the “theological tenet” embodied in it (at 570), and the “theological finding of the Missouri legislature” (at 572), as well as a tortured and embarrassing passage in which Stevens purports to explain St. Thomas Aquinas’ views on abortion and analogize them to the Missouri statute. 

 

Sigh.

 

As I said before, I wish Justice Stevens well in his retirement.  As for his successor, hoping for someone who is pro-life is too much to expect from President Obama.

 

I do hope, however, that the President has the gumption to appoint someone who knows what a syllogism is – someone who knows the difference between making an argument in support of a conclusion, and simply declaring a proposition to be true.  “Repetition” is not a synonym for “proof,”  “demonstration,” or “argument.”