The Volokh Conspiracy

He is absolutely anti-Roe.

He is absolutely anti-Roe.

John Roberts is a man of high integrity and great principle. He is far more conservative than I am, but knowing him (both as a clerk watching him argue before the Court, then later as a friend), it is my belief that his respect for the Supreme Court as an institution would make it very difficult for him to tinker lightly with established precedent.

I can only hope that Roberts wants to overturn Roe. I am not particularly pro-life, but Roe was and is an abomination. Bush won and there are 55 Republican senators, I can only hope that this appointment is one of the spoils of victory.

Did I miss the memo explaining that for now, and for all time, only vocal supporters of Roe v. Wade are fit to be judges or justices?

An interesting bit is PFAW's point that the Roe line was gratuitous in the Rust brief. I'm not personally familiar enough at the this point to dispute that on my own. Nonetheless, this evening I saw an interesting interview with Laurence Tribe, who argued on the other side in Rust, in which he stated that the reference to Roe was distinctly not gratuitous, i.e., that it was a necessary addition to the brief in order to support the argument the administration was making in that brief.

I think the quote is going to hurt him. Not enough to derail it all, but it will hurt. Nonlawyers (i.e. most of us reg'lar folks) are not going to believe for one moment that he wasn't in sympathy to some degree with that statement when he wrote it.

I think it would be foolish of the Administration to take the position that it doesn't count because we don't know if he meant it. Better, I would say, if they took the position that (A) the will of the people, as expressed in legislation since 1973, is certainly that there is some basic right to abortion under some circumstances, however tricky it may be to precisely define the circs (and it would be best left to the legislature to do so). And he would, of course, respect and enforce that consensus (as reflected in the law) regardless of any personal feelings. But (B), even if the outcome was OK, Roe was maybe not a finely crafted decision in the best tradition of jurisprudence mumble mumble technical legalese stuff blah blah. That is, he himself would largely criticise Roe on its technical quality, not necessarily on the desirability of the eventual outcome. Hey, he's known as a bit of a legal geek already, why not trade on that?

Well, how would you decide Roe today Mr. Roberts? Senator, that's a strange question. You agree 2005 is not 1973, I hope. Times have changed, we've made wonderful progress on equality for women and minorities blah blah [insert multiculti feelgood pap here]. It seems very hard to believe that a case just like Roe would come up again. You might as well ask how I would decide Dred Scott, when, of course, there have been no runaway slaves for 150 years and there seems little prospect of any.

Mr. Roberts, you're being argumentative. How would you decide a case very like Roe, then? Say, one that relied on Roe as a precedent? Well, Senator, of course I can't tell you that. You're either asking me for a personal opinion -- and I've already said my personal opinions have nothing to do with my jurisprudence -- or you're asking me for a judicial opinion, and, sir, I would not be a responsible judge if I wrote an opinion without knowing all the facts of the case. It would be plain nuts for me to state how I'd rule on a case -- undoubtably a difficult and painful case, with enormous stakes for the folks involved (since it involves some tragic confluence of factors that thrusts what should be private joy, birth, into the ugly glare of the courtroom) -- knowing nothing other than the fact that one side or the other cited Roe in its pleadings. I hope you see that the individual circumstances of the case would have to weigh very heavily in my decision, and, without knowing them, I can't tell you how I'd decide.

That will play well in Peoria. In truth, SCOTUS decides stuff based on grand principles, of course, but we plain folk like to imagine that they remember the briefs and stacks of paper conceal actual real people caught in actual painful dilemmas, and we hope they treat us as individuals. After the public response to Kelo, however "misinformed" that might have been about the proper role of the Supreme Court, I think it would be wise to remember it. He could even cite O'Connor's supposed predilection that way, and ward off comparisons to Scalia, who natters on about texts and their original meaning. One of the great aspects of GWB as President is that, no matter how much he keeps his eye on the grand sweep of history, he never forgets the actual real individuals who are bitty motes caught up in it.

Steve, he was one of six writers on that brief. I just co-wrote a brief with 3 writers and there are things in it I would not have written; your standard would impute those statements to me personally if I refused to answer a question about a hypothetical case that I should not answer because I cannot be bound by it, in that the facts of a real case might change the outcome. That's a tough standard.

In response to talk about Roberts saying that Roe is the law of the land in his confirmation hearings to the DC Circuit, isn't that exactly what a nominee to a Circuit Court of Appeals needs to/should say? As we all know, for a Judge on a Circuit Court of Appeals, Supreme Court law is his precedent and he must follow it! For him not to have given his personal view on the matter was absolutely the right thing to do - at that time. NOW, as Chuck Shumer stated last night, it is an entirely different ballgame. Now the American people deserve to know how he feels about Roe and whether he believes it should be upheld. Now, unlike before, he could be in a position to overturn it. I just hope he answers these questions truthfully so that we know where he stands.

Let me add that I predict that Roberts's answer to all of those briefs, etc. that he was listed on to be that, sorry, but he was acting as an attorney. His personal views there were irrelevant. Entirely proper. While it may not satisfy the Democrats in the Senate, it will be enough of a fig leaf for the Republicans there. And that, in the end, is what is important.

Let us remember that Laura Bush has said some surprisingly pro-choice things in interviews. There is little doubt that the President does not share such leanings. The involvement of one's wife is only of limited value in predicting views of the candidate, even at the Presidential level. I hope he is pro-life, but the argument based on his wife's social activities cannot and should not be used as impeachable evidence.

Isn't this like saying that if a public defender represents a murderer then he supports murder? Isn't a lawyer's responsibility is to represent his client?

The comeback to that argument, I believe, is that some assert that a lawyer shouldn't work for anyone whom he disagrees with, and thus, you should be able to attribute the views of the client to the attorney.

No, the response to that argument is that attorneys, and particularly former editors of the Harvard Law Review, have a lot of different career choices they can make, and you can tell something about the attorney's own views from the choices he or she makes.

That is not to say that an attorney passionately believes in -- or even agrees with -- every single argument he or she might make in the course of a career, but you don't find yourself writing anti-Roe briefs for the Solicitor General's office by accident.

(Likewise, I don't imagine that a lot of Sierra Club attorneys sit around wishing they didn't have to spend their days arguing in favor of environmental regulations they personally despise.)

Jobs at DOJ vary greatly. If you're a first-year assistant U.S. attorney prosecuting drug mules in Miami, you do what your superiors tell you. If you're deputy Solicitor General, you're pretty close to the top of the food chain, and you're not there unless you want to be there and very senior people in the administration want you there.

To be clear, I can imagine -- though I doubt -- that Roberts really doesn't have a particularly strong opinion on Roe and was involved in writing the Rust brief anyway. Similarly, I can imagine -- though, again, I doubt it -- that Judge and Mrs. Roberts privately disagree about the abortion issue. But there's no reason to pretend that those facts don't give us any clue about what Roberts' personal views on Roe and abortion are; of course they do.