A Swing and a Miss (Times Three)

It’s that time of year again . . . when Major League Baseball hosts its Winter Meetings.  At the same time that many people are shopping for Christmas presents for their loved ones, professional baseball clubs are shopping for players to improve their rosters.

Here in the Second City, the Chicago White Sox are looking to improve from a dismal season in 2014, whereas the Chicago Cubs are looking to recover from a dismal century.

One of the Cubs most famous fans is retired Supreme Court Justice and Chicago native John Paul Stevens.  It would be wrong to criticize Justice Stevens’ judgment for being a Cub fan – a burden and a joy that he inherited from an early age.  But he can most definitely be faulted for his errors in judgment as a member of the Court.

Three of Stevens’ most flawed opinions concern abortion: Thornburgh, Webster, and Casey.  In each of these opinions Stevens embraced a mantra repeated again and again by pro-choice advocates, viz., that the pro-life position on abortion is “inherently religious” such that legal efforts to protect the developing human embryo or fetus constitute an establishment of religion in violation of the First Amendment.  The practical effect of this argumentative strategy is to foreclose substantive debate on the issue of the legal status of the unborn – to preclude from consideration an entire point of view and so win an argument without ever really having one. 

The claim that the pro-life position is religious has a long pedigree going back to Glanville Williams’ The Sanctity of Life and the Criminal Law (1957) and Lawrence Lader’s “Catholic strategy” at the founding of NARAL, but Stevens is its most prominent spokesperson.  Surprisingly, however, a close, critical reading of Stevens’ opinions in Thornburgh, Webster, and Casey is almost entirely absent from the scholarly literature.

In a recently published article entitled “Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens Opinions in Thornburgh, Webster, and Casey,” I seek to remedy that absence. 

The article demonstrates that Stevens simply takes for granted the central claim upon which the conclusion of establishment turns – the religious character of pro-life legislation.  He then employs this assumption rhetorically in order to dismiss a point of view he never squarely confronts.

In this regard, Stevens’ approach is exemplary of the vast majority of academic commentators who have put forth the same claim.  (Two commentators on abortion, Peter Wenz and Ronald Dworkin, at least recognize that an argument needs to be made to show that a particular proposition possesses some quality that renders it “religious” and so unsuitable as a basis for law.  Their arguments also fail, as I intend to show in a subsequent article, but at least they recognize the issue).

The article also shows that Stevens’ characterization of religious establishment is so broad that it would render any attempt to define who is a human being worthy of legal protection (including Stevens' own) unconstitutional.  Although Justice White made this very point in Thornburgh, Stevens never responds to it in any of his opinions, echoing the silence in the academic literature to the same argument that John T. Noonan, Jr. put forth years earlier in his book, A Private Choice (1979).

The article also argues that Stevens’ cryptic invocation of the “endorsement” test in Webster fails, and that he covertly repudiates the principle of McGowan v. Maryland.

Although Stevens has many admirers, the naked assertions and inconsistencies that he offers in these opinions must constitute the intellectual low-point of his tenure on the bench.  As a Cubs fan, Stevens knows all about low points, but unlike the Cubs record, these are of his own making.