University of Chicago law professor Geoffrey Stone doesn’t know the difference between overruling a previously decided case and reversing a lower-court ruling. Worse, he’s wrong. The Supreme Court in Gonzales v. Carhart (2007) didn’t overrule Stenberg v. Carhart (2000). It distinguished the cases. Both remain good law. I’m glad I didn’t get my legal education at the University of Chicago.

Addendum: Here is the most unsettling paragraph of Professor Stone’s post:

What, then, explains this decision? 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. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.

Professor Stone has left the realm of law and entered the realm of science. He has left the realm of justificatory reasons and entered the realm of explanatory reasons. He has left the realm of grounds for belief (epistemology, legal reasoning) and entered the realm of causes of belief (psychology, cognitive science). Why anyone should care about the amateurish (not to mention insulting) psychological speculations of a law professor is beyond me. Has it gotten this bad in our law schools? Do we now dismiss judicial rulings on the basis of speculation as to the motives of the judges? Does criticism consist of reconstructing the causal origins of (and influences on, and consequences of) a judge’s beliefs or values? How would Professor Stone like it if, instead of responding to the substance of his blog post (or his academic writings), we speculated about the etiology of his beliefs and values (and how they affect—or determine—the arguments he makes or the analyses or criticisms he offers)? What exactly would be the point of that, other than to insult him? Law, like morality, religion, medicine, art, and science, is an autonomous institution, with reasons, standards, rules, concepts, and methods of its own. Applying the methods of science to it is not to do law; it is to make law the object of a scientific study. If Professor Stone wants to study law from the outside, he is welcome to do so, but first he needs proper training—in science—and, once trained, he needs to move to a suitable academic department, such as psychology, sociology, or political science.

By the way, the argument Professor Stone attributes to the Gonzales majority (“Infanticide is immoral; intact D&E resembles infanticide; therefore, intact D&E is immoral; what is immoral may be prohibited; therefore, intact D&E may be prohibited, i.e., there is no constitutional right to perform intact D&E”) does not appear in the opinion; nor can it reasonably be construed as the justices’ reasoning. Professor Stone made it up out of whole cloth—the better, one supposes, to avoid or dismiss their actual reasoning. Can you say “straw-man fallacy”? One wonders whether Professor Stone allows his students to commit this fallacy. I certainly don’t let my students commit it.

Addendum 2: Here is Jan Crawford Greenburg’s column (or rather, blog post) about Professor Stone.