September 16, 2005
Volume 7 / Number 36
Dear Colleague:
John Roberts did a fine job avoiding the traps laid for him by liberal senators in their questions this past week, and we think he deserves to be confirmed as Chief Justice of the United States.
Steven W. Mosher
President
Stick by Roberts
By Joseph A. D’Agostino
Watching or reading about John Roberts’ responses to Democratic senators’ pressing of him for his views on Roe v. Wade and the so-called right to privacy on which it was dishonestly based, pro-lifers could get the impression that the chief justice nominee is another anti-Constitution stealth candidate. It’s true that Roberts has never publicly committed himself on Roe’s unconstitutionality, and it’s possible that, even if he believes that Roe is unconstitutional, he would not vote to overturn a 33-year precedent that has spawned such a large and vociferous anti-life apparatus. He could be conservative in the strict sense and not wish to upset the apple cart by overturning Roe any more than he would by imposing same-sex marriage on America-i.e., he would not agree to court rulings that make things worse but also would not agree to any that undo long-standing damage when that damage has become an entrenched part of American jurisprudence and society, as Roe has.
No one can guarantee that Roberts will vote to overturn Roe. It’s not provable from the public record if Roberts is a keep-things-the-same conservative or a more principled conservative. But now that his testimony is concluded, I continue to believe that conservative and pro-life Americans should hope Roberts is confirmed. Roberts has given every sign that he believes in restoring constitutional government (see the Weekly Briefing, Confirm Roberts,
July 22, 2005), and his wife even worked for Feminists for Life. An explicitly anti-Roe nominee, though preferable, could have great trouble winning confirmation in the Senate, where there are enough liberal and moderate Republicans to join with Democrats to vote such a nominee down. And Roe isn’t as entrenched as all that, even from the perspective of a jurist who places the stability of the law above all else, which Roberts probably is not.
As Sen. Sam Brownback (R.-Kan.) said during the hearings, Roe has been and continues to be controversial. It’s been controversial in Congress and the state legislatures, where laws challenging Roe have been passed again and again. It’s been controversial in the courts, including the U.S. Supreme Court, which has revisited the scope of Roe again and again and is slated to do so yet again this judicial term. And it’s been controversial among the American populace, a large proportion of which rejects Roe while many others have their doubts about it. So even a conservative in the strict sense has plenty of grounds for reexamining Roe afresh, and returning decisions about abortion to the elected representatives of the people-which is, after all, all that overturning Roe would do. Is that really so radical?
If I am wrong and President Bush has lied to us about the type of jurists he nominates, and Roberts ends up betraying the Constitution, all those who believe in the rule of law, and the pro-life cause, then it’s probably time for pro-lifers to dump the standard two-party political system and turn to third parties.
Roberts’ answers to Democratic senators’ questions on Roe and the right to privacy, when carefully parsed, don’t reveal anything substantive, surely his intention from the start. He certainly gave hints that he might want to overturn Roe. In responding to questions from pro-abortion Senate Judiciary Committee Chairman Arlen Specter (R.-Pa.) about Roe and the importance of following precedent, he said, Whether or not particular precedents have proven to be unworkable is another consideration on the other side-whether the doctrinal bases of a decision had been eroded by subsequent developments.
Not only have the factual bases of Roe and its companion case of Doe v. Bolton been exposed as fraudulent by the actual plaintiffs in the cases, but the Supreme Court was widely viewed as eroding Roe (doctrinally, though not in a way to restrict actual abortions) in its Planned Parenthood v. Casey decision in 1992.
For example, Roberts said, in discussing the principles that govern precedents, that the Casey decision was one *in which they [the Supreme Court justices] went through the various factors on stare decisis and reaffirmed the central holding in Roe, while revisiting the trimester framework and substituting the undue burden analysis with strict scrutiny. So, as of ‘92, you had reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.* To read Roberts’ testimony in its entirety, go to:
http://www.washingtonpost.com/wp-dyn/content/linkset/2005/09/14/LI2005091402149.html
Saying that a Supreme Court precedent is entitled to respect
is just a judicious way for someone like Roberts to show respect to the Supreme Court and legal system. To be a justice or judge in a system descended from English legal principles, you must show respect for a precedent, even as you blow it out of the water.
Roberts gave similarly noncommittal answers to other questions on Roe and the right to privacy, which he refused to generalize as a broad dispensation, though some senators wished him to do so. We continue to believe that John Roberts will make a fine member of the Supreme Court.
Joseph A. D’Agostino is Vice President for Communications at the Population Research Institute.
