A on Performance, B- on Law

Today, Judge Roberts deftly answered questions on issues ranging from abortion to terrorism before eighteen people who obviously know less about constitutional law than he does. Democrats, especially Sen. Biden, responded angrily when Roberts refused to make himself a political candidate by severely limiting the types of questions he would answer. Throughout the hearing, Roberts demonstrated a complete understanding of the Court's precedent and ably discussed the important principles of judicial practice, such as stare decisis. In many ways, his performance mirrored the real testimony, as opposed to the witch-hunt/desperation portion, of Clarence Thomas. Until Sen. Kohl questioned him, Roberts gave conservatives no reason to fret.

Unfortunately, though, he then dropped the ball. Through much of the hearing, Judge Roberts used the language of privacy within its proper context. He enumerated the specific privacies protected in the text of the Constitution without expanding the term to include "rights" that do not appear. Then, Roberts responded to a question by Senator Kohl saying, "I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that...." (To be fair to Judge Roberts, I am including the full text of the relevant part of the exchange below.)

THERE IS NO RIGHT TO MARITAL PRIVACY IN THE CONSTITUTION.

As I said, Judge Roberts had been answering the questions appropriately, if unwisely, by using the word "privacy" to describe many of the rights that are protected in the Constitution. The methodology used to go from the rights in the Constitution is the same type of "reasoning" that has been used to justify a federal government that far exceeds the enumerated powers in the Constitution. It's like saying, "Parents have a right to choose how their children are educated. Parents have a right to make decisions about their children's' health care. Thus, parents have rights. Since parents have rights, parents have the right to beat their children." It just doesn't work.

There is not now nor has there ever been a right to marital privacy in the Constitution. Whether it is wise for a state legislature to ban the use of contraception is a separate issue. The problem in Griswold is that the Supreme Court injected itself into an issue that, according to the Tenth Amendment, must be left to the states. Like many cases since, the decision in Griswold was an exercise in raw judicial power. It paved the way for the Court to usurp power that properly belongs to legislatures, from abortion to gay rights to affirmative action to environmental regulation. Judges are not supposed to be policy makers, and, the rest of his testimony not withstanding, it appears that Judge Roberts at worst fails to understand this principle and at best has a flawed understanding thereof.

The Supreme Court, according to the Constitution, is supposed to decide "cases in controversy". This means that its rulings are supposed to deal with particular applications of particular laws. Whether laws themselves are constitutional is a determination that must be left to elected officials who, like judges, are sworn to support and defend the Constitution. To be sure, Congress has far exceeded its enumerated powers. This is a serious problem for which the only solution is the election of officials who appreciate the restraints placed on the legislature by the Constitution better than those currently in power do. Even so, it is ludicrous to suggest that the Supreme Court has magical powers by which it has a much better ability to understand the Constitution than do the other branches. I hope that Republican Presidents, including this one, will start to nominate men and women who have a firmer understanding and appreciation for the limits of the authority of the Supreme Court.



KOHL: All right. Judge, do you believe that reasonable people can disagree on Roe v. Wade? Regardless of what you think of the decision, do you believe that there is an intellectually honest approach on the other side that is worth respecting?
ROBERTS: I certainly agree that reasonable people can disagree about that decision. Yes.
KOHL: And you do, obviously, respect people on the other side of the issue? ROBERTS: Yes.
KOHL: In Rust v. Sullivan, as deputy solicitor general, you signed brief in which you wrote, and I quote, The court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure or history of the Constitution, unquote.
So does this quote jibe with your statement that you understand that reasonable people can disagree?
ROBERTS: Well, I think so, Senator. The position that you're reading from there was the position of the administration. I was one of nine lawyers on the brief in that case. It was reflecting the position that had been advanced in four prior cases, up to that point, by the administration.
ROBERTS: And we were reiterating that position. This was before the Supreme Court issued its decision in Casey. That was the view of the administration and the conclusion.
I don't think there's anything in there that suggests we think or thought that anybody at that time who disagreed was unreasonable. That was our legal position. The other side's was obviously presented in those cases.
KOHL: So you are saying here that there is no support in the text, structure or history of the Constitution for that position. That's pretty flat out, pretty straight, pretty black and white.
ROBERTS: And in those cases, the other side argued that there was. And I don't think there's anything in either of those views that suggests you don't think that reasonable people can take different positions on those questions.
KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the '80s and into the '90's, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.
I assume, therefore, there are -- those are opinions that you are prepared to disavow?
ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?
ROBERTS: Well, at this point, of course, we're now 23, 24 years later. I would not -- I would have to address each of those positions anew. I wouldn't try to transport myself back 24 years and say: What did you think 24 years ago? And that would require me to look at and examine all those things.
And of course, it's not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it's one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record -- we've talked today about how important a record is in a particular case -- consider the law and the precedent.
But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years.
ROBERTS: I'd have to consider all those before reaching a conclusion in any of those particular areas.
KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.
Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.
Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?
ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.
And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.
KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.
These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.
I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe.
ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people.
The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there.
And so that's an area that I do not feel it appropriate for me to comment on.
KOHL: Sure. I appreciate that.