Justices in Mitres

How not to visualize the partial birth abortion decision: Tony Auth's April 20, 2007 political cartoon has the Gonzales v. Carhart majority smugly preening in papal mitres, with the dissenters looking on in dismay. The caption reads, "Church & State." How unfair. What if Auth had drawn devil's horns on the dissenting justices, with pitchforks thrown in for good measure? That would have been just as unfair.

This is more than a problem of anti-Catholic bigotry or even anti-religious bigotry. It brings to the surface a deeper problem. A critic of a judicial decision feels free to disregard out of hand the judge's stated reasons and to substitute his own "true" reasons, while providing scant justification for why the judge's stated reasons ought to be ignored. Rational argumentation becomes conspiracy theory.

Of course, some reasons are pretextual, but surely the critic bears the burden of proving pretext. Simply counting the avowed Roman Catholic justices on the bench and matching them with the Carhart II majority cannot be enough proof that the sole motive of religious duty animated their decision. It may, however, constitute proof of bias on the part of the critic.

Of course, this hermeneutic of suspicion is not limited to law and politics, but rather permeates much of the current discourse on a variety of matters. A dose of healthy realism never hurt anyone, but today's intellectual climate seems to encourage megadosing.