John G. Roberts, Jr., is President Bush’s nominee to the Supreme Court, to fill the vacancy left by the retirement of Justice Sandra Day O’Connor. Roberts is the protégé of Chief Justice Rehnquist, who presumably urged President Bush to select him. Roberts served as a clerk to the Chief Justice during the 1981-82 term and has remained close to Rehnquist ever since.
Roberts has even emulated the substance and style of the Chief Justice’s approach to the law. In substance, Rehnquist is known for limiting judicial power by deferring to other branches of the government, and to the states. Rehnquist takes an amoral approach to the law whereby, good or bad, he allows states and Congress to have more power than other justices would. Roberts? sparse writings reflect an identical approach.
Also like Rehnquist, Roberts has not publicly said much of controversy. Over twenty years ago Roberts, as a young man, did write many memos while working in a low level position in the Reagan Administration, and those terse communications have received much attention since his nomination. But even those writings are lacking in much content.
At one point long ago Roberts did call abortion a “tragedy”, and there are other reasons to be optimistic that he is pro-life. In 1990 he put his name on a law brief for the first Bush Administration that urged the Supreme Court to overrule Roe v. Wade, the notorious decision that legalized abortion in 1973. “We continue to believe that Roe v. Wade was wrongly decided and should be overruled,” the brief declared. “The court’s conclusion in Roe that there is a fundamental right to an abortion … finds no support in the text, structure or history of the Constitution.” In the many briefs authored by Roberts, he has apparently never cited Roe v. Wade in a favorable manner.
In 1996 Roberts married a pro-life activist, and together they have adopted two children. Statistically, parents who adopt children are overwhelmingly pro-life. Personally, Roberts also appears to be a highly moral individual.
But some caution against reading too much into all this. Roberts has likely aspired to be selected for the Supreme Court ever since he worked for the Chief Justice, and the lack of any genuine demand by Roberts to overturn Roe v. Wade leaves many to wonder. The above statement in his law brief merely mimicked many similar statements made in other law briefs filed by the Reagan and first Bush Administration called for overturning Roe v. Wade.
At his Senate hearings in 2003, when he was confirmed to be a judge on the Court of Appeals for the D.C. Circuit, Roberts described Roe v. Wade as “the settled law of the land.” But again, that was a phrase that virtually every nominee used at that time to be confirmed, so it would be a mistake to attach too much significance to it. Even John Ashcroft, one of the most vocal opponents of abortion, used a similar phrase. Overall, Roberts’ testimony before the Senate was more conservative than almost anyone else’s.
Roberts may imitate Rehnquist on the partial-birth abortion issue. In Carhart v. Stenberg (2000), Rehnquist voted against the heinous procedure. Roberts would also likely follow Rehnquist on the upcoming Ayotte v. Planned Parenthood case, scheduled to be heard by the Supreme Court on November 30, 2005. That case, considered by many to be the most important abortion case since Roe v. Wade in 1973, will consider whether federal courts should invalidate state laws against abortion without the laws even being applied. Roberts may provide the pivotal fifth vote against abortion in this case.
Why John G. Roberts, Jr.?
President Bush appears to have intentionally nominated Roberts because he has avoided taking a public position on almost everything. Such persons are known as “stealth” nominations, because they are selected on the theory that they can be more easily confirmed if there is less for the other side to quote and criticize. It is that strategy that is perhaps most troubling to Bush’s supporters.
Conservative commentator Ann Coulter harshly criticized the selection of John Roberts, observing that stealth picks never turn out to be conservative. The first President Bush nominated David Souter precisely because he had no published positions, and he turned out to be as liberal as any justice, even siding against the current President Bush’s legal arguments in the contested 2000 election. That happened despite many early indications that Souter was a conservative. Other stealth picks in the past who have disappointed conservatives include Harry Blackmun (author of Roe v. Wade) and William Brennan (advocated of an evolving constitution). If someone is unwilling to speak out in favor of conservative values, then he is not likely to remain a conservative once sworn into the Supreme Court.
President Bush campaigned for president on his support of Justices Antonin Scalia or Clarence Thomas, whose prolific and original work challenges all judges to remove legal impediments to a better society. When Bush was locked in a tight primary race with John McCain in 2000, Bush appealed to conservatives? concern about the Supreme Court in order to win the nomination. But it is clear that Roberts is not like Scalia or Thomas. It is also clear that Roberts is not as good as other candidates, such as appellate judges Edith Jones or Frank Easterbrook.
But Roberts is clearly better than the person he wants to replace: Sandra Day O’Connor. Justice O’Connor’s opinions in favor of abortion and against religion in public life have caused enormous harm to our Nation. The Supreme Court has encouraged federal courts to invalidate state laws against abortion, even though research suggests that as many as one in three abortions subsequently results in breast cancer for the mother: http://www.jpand s.org/vol10no1/aschlafly.pdf ; http://www.aapsonlin e.org/lanfranchi.htm. Since the Supreme Court, under Justice O’Connor’s leadership, invalidated certain state restrictions on abortion in 1992, there have been over 17 million abortions. Five million of those mothers-to-be may be developing breast cancer as a result. The United States has the highest rate of breast cancer in the world, nearly twice that of a comparable country (Ireland) that prohibits abortion. Roberts offers the promise of replacing O’Connor’s votes in favor of abortion with a vote against it.
Federalism means limiting the power of the federal government and deferring to state power on everything from commerce to schools to the posting of the Ten Commandments. Federalism is the legacy of the Rehnquist Court, and now his former law clerk Roberts would likely carry the philosophy forward. Roberts has already shown his determination to do so in his dissent from a petition for rehearing en banc in Rancho Viejo, LLC v. Norton, 357 U.S. App. D.C. 336. Notably, not another conservative on the D.C. Circuit joined his dissent, showing how rare this view is in Washington.
Roberts copied the position of the Fifth Circuit, a hotbed of brilliant conservatism that many hoped President Bush would draw upon for his nomination. Roberts followed the Fifth Circuit in emphasizing the need to adhere to the 5-4 Rehnquist decisions of United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). Roberts invoked those precedents to question in vain the legality of an environmental regulation.
Federalism supports returning to the states power over abortion and religion. Whether the issue is an invocation at school graduation or the posting of Ten Commandments, Rehnquist has sided in favor of the rights of schools and state and local governments to recognize religious values. Roberts is likewise expected to hold in favor of public recognition of religion.
President Bush promised in his second debate with John Kerry not to select a justice who would invalidate the Pledge of Allegiance. In picking John Roberts, Bush has honored that particular promise.
Roberts may also be very good on the issue of limiting the power of federal courts. In his brief tenure as an appellate judge, Roberts has repeatedly emphasized congressional power to define and limit court jurisdiction, suggesting that he will both exercise judicial restraint and affirm proposed congressional limits on court interference in the areas of religion, marriage and the Boy Scouts.
Federalism or morality?
On occasion, Rehnquist’s and Roberts’ legal philosophy of federalism is not helpful on moral issues. Where states or Congress act improperly, Roberts is not likely to help much. Issues like embryo experimentation, “right to die,” illegal immigration and same-sex marriage present that dilemma.
When a State or Congress does something manifestly immoral, such as funding embryonic stem cell research, Roberts is unlikely to vote to stop it or even criticize it. When a State mandates gay marriage licenses, as Massachusetts has, Roberts will not even want to consider the issue. His view, like that of Rehnquist, will be to defer to the States and to Congress.
In 1985, when the young Roberts was espousing conservative principles for the Reagan Administration, he showed he prefers the principle of federalism by advising against Reagan support for school prayer. As an attorney, Roberts spent at least a little time helping gay rights activists and pornographers, and sided against private property rights. Roberts’ supporters defend these actions by saying it was part of his job at a large law firm in D.C.
Issues for Which Federalism Fails.
The “right to die” controversy is one in which federalism does not lead to a moral result. This issue was first presented to the Court in Cruzan v. Director, Missouri Dep’t of Health (1990). Nancy Cruzan was in a persistent vegetative state, and her own parents wanted to cut off life support.
Roberts was not involved in the case, but his mentor Rehnquist wrote the opinion for the Supreme Court that deferred entirely to the State of Missouri, apparently saving Nancy Cruzan?s life. Yet subsequent events illustrated how worthless that approach was.
Within months, a Missouri court authorized the termination of Nancy’s life, and a few years later Nancy Cruzan?s father then took his own life, too.
By deferring to state courts, Rehnquist’s federalism left federal courts helpless to save the healthy Terri Schiavo from a court-ordered termination of her life despite her parents? attempts to save it. Not even a special Act of Congress could compel the courts to bring justice, under Rehnquist’s approach, to a woman who had been denied therapy for years.
Judicial deference to states makes even less sense for illegal immigration, as one state’s permissiveness opens the door for illegals to enter every other state. Rehnquist deferred to the Executive Department in agreeing in Hamdi v. Rumsfeld (2004) that Mr. Hamdi, an enemy combatant captured in Afghanistan, had a right to American citizenship simply by having been born on American soil.
Traditionally, mere birth of an individual on American soil has not alone conferred citizenship, just as it does not for the offspring of foreign diplomats stationed here. Millions of descendants of illegal aliens could insist on citizenship as “anchor babies” if birthplace alone sufficed, and thereby encourage more illegal entries.
But Rehnquist allowed Mr. Hamdi to assert citizenship because he was “[b]orn an American citizen in Louisiana in 1980” to Saudi Arabian parents who subsequently returned to their homeland. Dissenting, Justice Scalia accurately called Mr. Hamdi a “presumed citizen” rather than an actual one.
Free political speech, including the internet, is another issue of growing significance that also fares badly under the Rehnquist-Roberts view. Rehnquist supports congressional restrictions on campaign speech and donations, citing his mentor Justice Jackson and the ultimate icon against morality in law, Oliver Wendell Holmes.
Justice Holmes, like Roberts, was Harvard-educated and idealistic in his youth. But Holmes went down the dead-end road of judging without morality, leading him to affirm the forced sterilization by Virginia of a woman because she had an IQ lower than average. “Three generations of imbeciles are enough,” Holmes bellowed in triumph of his amoral form of justice. Buck v. Bell (1927).
Roberts may be a throwback to Rehnquist?s and Holmes? approach of judging without morality. There is little doubt that Roberts will follow Rehnquist, to whom Roberts owes his success, on the issues of federalism and judicial restraint and perhaps everything else as long as Rehnquist remains on the Court. In the short term Roberts should be a marked improvement over O’Connor, but how well his philosophy will hold up against challenges of the future is less clear.
All eyes and ears will be on Roberts during the upcoming hearings in September, which will likely be televised and otherwise dominate the media. Democrats will probably attempt to filibuster (i.e., block a vote) on Roberts. It only takes 41 votes to filibuster a confirmation vote, and there are 45 Democrats currently in the Senate. Moreover, a few Republicans may also oppose a vote on Roberts. We shall soon see.
What would you ask John Roberts before deciding whether to support him?
Should John Roberts be required to answer any questions by senators?
Should there be term limits for Supreme Court justices?