Skip to comments.Roberts and Roe: Who Does John Roberts Remind Me Of?
Posted on 07/21/2005 10:30:51 AM PDT by BaghdadBarney
No, not Greg Kinnear or Dan Quayle. Not talking about his looks. Talking about the kind of justice a Justice Roberts would be. Reading through the long profile in today's New York Times confirmed what has sounded right to me all along: Roberts sounds a lot like Justice John Harlan. Harlan was a superb lawyer, possibly the best lawyer to sit on the Court in this century. He was very deeply respectful of the Court and the Constitution, non-doctrinaire but still principled and coherent unlike almost every other justice who has, like Harlan and evidently like Roberts, eschewed grand theories of interpretation. Harlan of course was with the majority in Griswold. That's the case which (as George and Tubbs just wrote in the dead-tree NR) started us down the primrose path of "privacy" jurisprudence. Harlan did not live long enough to put an oar into Roe's water. It really is anyone's guess what he might have done there. The weakness in Harlan's work and it is the question about Roberts and Roe is this: When conventional legal reasoning runs out or is indeterminate, where does one turn? This does not happen everyday on the Court. It happens a lot less, as a matter of fact, than liberals contend. But it happens more often than most conservatives allow. Now, conventional legal reasoning would be enough to do the right thing about abortion if this were 1973. Even pro-choice lawyers and professors were aghast at the slipshod quality of Blackmun's opinion. (Maybe that means Harlan would have dissented. Who can say for sure; even sober lawyers such as Lewis Powelll went south in Roe.) The question now is reversing Roe. Here I think we should be very, very cautious about where we think a Justice Roberts would go. (Note well: I do not know Roberts at all and write this solely based upon what I have read recently about his judicial philosophy.) Dedication to legal craft, the internal logic of law, the Court's role in our system, respect for precedent all the things that Roberts clearly does (and should) value are themselves indeterminate when it comes to this question. Probably, they tilt towards the joint opinion by the three Republican in Casey. I think that to reverse Roe today a justice has to dip into a realm which, to date, John Roberts suggests is not within his judicial comfort zone: moral truth. Precedent matters a lot most of the time. But not when we are talking about fundamental matters of justice. To see that abortion is a fundamental injustice requires moral vision, which John Roberts no doubt possesses. But a justice with the requisite moral vision has to have a stable and coherent account, too, of just how moral truth is part of constitutional law. A justice has to have a cogent reply to the standing twentieth-century judicial accusation against what I have just proposed: Judges must never impose their own moral predilections upon the law.
I don't think Roe will be reversed with a single blow. I think it will be eviscerated by multiple decisions that leave no inherent federal right to abortion other than situations where the mother's life is in danger, and return the rest to the states. That way SCOTUS can overturn the case while pretending to respect precedent.
Yes, Coulter might be right. He is, however, probably an improvement on O'Connor. That doesn't make Bush truthful on the appointment issue, but it might do as O'Connor's replacement, especially since we have no further choice in the matter.
Abortion is no more a matter of 'moral vision' than any other law. Overturning Roe does not require anything other than a straightforward reading of the Constitution.
Unlike Souter, this man and his wife actually was/is active in the beliefs and views his supporters are saying he holds. Everyone needs to get off the "stealth candidate, we're getting screwed again" pessimist bandwagon.
Souter did not belong to the Federalist Society or hang out with conservatives.
Reagan put Justice Kennedy on the court and Kennedy had a great conservative record for about 10 years and then the wheels fell off.
Renquist was a so-called "stealth candidate" nobody knew anything about...
Sorry, my bad.
Well, we will find out in short order when the Court addresses the partial-birth abortion case that headlines its calender next year. Most likely the law will be upheld with O'Connor gone and Robert in. But will Roberts join with Rehnquist, Thomas and Scalia with regard to criticizing Roe, Casey and "mother's health" exception? Or will he join Kennedy in writing up some separate concurring opinion which will uphold the law but do nothing to weaken Casey? You might be right but...
I guess we'll probably have to wait years to get an idea if this is a good appointment. Which makes me wonder if conservatives had questions about Thomas and Scalia when they were nominated or did they have enough of a paper trail that the overwhelming consesus was that they would be conservative originalists. If it's the later, then why didn't W. nominate a "sure thing"?
I think this is what leftist judges do all the time.
Exactly. This "moral vision" crap is just that. Roe is bad law and unconstitutional. Legislators should have "moral vision", judges are supposed to judge the consitutionality of a law, no matter how moral or immoral.
It was the latter with Scalia and Thomas, so good question about W. That's Coulter's point exactly. I gave up on W being "as advertised" back when he signed CFR. So I'm just figuring Roberts can't be worse than O'Connor. Maybe we'll get lucky. Either way, we are getting exactly what we knew we were getting. All of us looked the other way when W hedged and parsed during the 2000 campaign. We thought we was just playing a smart game of political chess. Now that he plays the same game with us, I guess we are just getting what we deserve.
I'll take Levin's opinion over Coulter's all day long when in comes to judicial issues. Ann is a sharp witty bulldog but Levin is far and away more astute in this area.
Not to disrupt the party but as we saw with the case involving eminent domain there are more concerns than just Roe v Wade.... and I might add Is the glass half empty or half full?
I think you are right.
You can't take away a 'right' that a substantial minority of the country approves of without civil disobedience and a possible backlash unless you sneak up on it.
I think John Roberts will be an outstanding jurist for conservative America.
There were two Supreme Court Justices named John Marshall Harlan.
The first served on the court from 1877 to 1911, and wrote a brilliant dissent on the Plessy v. Ferguson case which as you might recall established "seperate but equal" racial segregation as the law of the land. Harlan's lone voice of dissent on the Supreme Court was a brilliant one, and his opinion led the court in 1954 to overturn legalized segregation in Brown v. Board of Education.
The second Justice Harlan, the first Justice Harlan's grandson, who was named for his grandfather, is more than likely the man this article is referring to. He served on the court from 1955 until 1971 and may have joined White and Rehnquist in dissenting from the majority opinion in Roe v. Wade, but that is just speculation.
Funny. He looks to me like a younger, buffer version of Frank Burns from MASH.
He's a good-looking man. Not great but nice in a son-in-law sort of way. And you can't fault that resume. I'm content. Pending some court decisions...
do you think that Thomas, got a conservative pass? Not likely.
I'm hopeful that Roberts will be an improvement over O'Connor. However, according to this Washington Post article, John G. Roberts Jr. has never been a member of the Federalist Society, despite widespread reports that he did belong.
Roberts is a Souter. Who else would a liberal Republican like Bush nominate? George H. W. Bush set the precedent. Bush isn't pro-life anyway, never has been. He has always supported the "but" position, as in against abortion except in the case of rape, incest, or life of mother. He also allowed federal funding on destroyed stem cell lines.
Don't you even wonder why the liberals are rolling over after preparing for "war" early on?
read this and learn how to shut up before you open your mouth and spew doom and gloom, and lies:
Why does NCJW (Rabid left wing group) oppose John Roberts' nomination?
While serving as Deputy Solicitor General in the Bush Administration, Roberts argued for the gag rule in Rust v. Sullivan (1991), by which the federal government barred doctors working in family planning programs receiving federal funds from even discussing abortion options with patients. The brief also argued that Roe v. Wade was wrongly decided a question not even posed in the case. The Supreme Court upheld the gag rule on the narrower ground that the rule itself was not unconstitutional.
As Deputy Solicitor General, Roberts also argued in an amicus curiae brief in Bray v. Alexandria Women's Health Clinic (1993) that protesters from Operation Rescue and six other individuals who blocked access to reproductive health care clinics did not discriminate against women, even though only women could exercise the right to seek an abortion. The year after the Supreme Court endorsed this narrow interpretation, Congress enacted the Freedom of Access to Clinic Entrances Act (FACE) to protect women and health care providers from violence, clinic blockades, and harassment.
Roberts also co-authored an amicus brief for the administration in Lee v. Weisman (1992) in support of letting public high schools include religious activities in their graduation programs. In that case, the court ruled against the government.
eyes look like the runaway bride. Maybe the runaway justice?
Wide-eyed and bush-y tailed?.....
NARAL is rolling over? It's been less than two days? Come on. The reason why you haven't heard as much as YOU want is probably because Bush caught them all off guard as they were certain he was going to appoint a minority or woman or both.
Please, the RATs will be screaming bloody murder soon enough. Hopefully the same crowd will not be a bunch of hypocrites and ask that they shut up about Roberts.
A quick point. In those briefs Roberts makes ample use of the word "We". WE believe Roe was wrongly decided, etc., etc. He was a lawyer arguing for a client...
Wonderful...In other words, this is not a Scalia-like justice and we've been betrayed once again by a Republican President if this guy is right.
he looks like Putin
Roberts argued for the overturning of Roe vs. Wade. It is possible that he made that argument even though he disagreed with it, but it isn't likely, it seems to me.
His wife is pro-life. Can you imagine her chagrin if he were to have a chance to be the 5th vote (along with Thomas, Scalia, and the replacements of Rehnq and Stevens) and he ended up voting with Ginsburg, Souter, Kennedy and Breyer? I honestly can't imagine it.
Most of these people are anti-Republican anti-Bush and they think no one realizes it.
Perhaps it would have been better had they, themselves, been "stealth" candidates and not outted themselves in opposition of everything in the last five years.
They are the minority opinion. They are becoming as much of a joke as the Liberals, because you know what they'll say before they open their mouths. Whereas the people supporting Roberts did NOT jump in the air when speculation was on Clements. These people did, however release the same talking points on her they have used on Roberts. They had the form ready, they only needed the name.
He looks like Larry Hageman (I dream of Jeannie; Dallas).
They are a minority, a tiny one in fact, however in their own delusional minds they think they represent a vast majority of conservatives.
If Roberts is good enough for Mark Levin and Laura Ingraham, then he's good enough for me. Those two have a great understanding of the issue, and some personal experience with the candidate himself.
IMO, if they really wish to know who Robert's is, and I have hesitated to state this because I know their agenda, Roberts is G.W.B. had he chosen a career in law rather than drifted a few years then chosen the life of a politician where sometimes concessions are made in interest of a larger goal.
This statement of course will send them if they latch onto it into hysteria bringing up CFR. Except G.W.B. is a politician, he calculated the Court would overturn, it was a mistake but not an example of G.W.'s thought on the matter absent political calculations.
Robert's is not Rehnquist. He is not Thomas. He is not O'Connor. He is not Stevens. He is not Souter. He is not Scalia. He is representative of G.W.B's view of the Court in the American process. Those that hate G.W. will be furious. Those that have trust in the President's vision of the Court comforted.
Nor is he his father. G.W.B. is not the sort to leave this to chance. He is 100% certain in his judgement of this man or he would not have nominated him.
Roe could be overturned instantly by simply recognizing that Roe erred in calling the fetus a 'potential life' instead of what it was: human life.
There are other ways to overturn Roe. Maybe 50 ways to do so. Incremental chipping away is not the way to go with Roe.
It is scary indeed that we aren't even sure that Roberts would overturn the worst Supreme Court decision since Plessy v Ferguson. But not as scary as the fact that - EVEN IF HE JOINED SCALIA, THOMAS AND REHNQUIST - there is a court majority left to uphold it.
"Roberts is a Souter. Who else would a liberal Republican like Bush nominate? George H. W. Bush set the precedent. Bush isn't pro-life anyway, never has been. He has always supported the "but" position, as in against abortion except in the case of rape, incest, or life of mother. He also allowed federal funding on destroyed stem cell lines."
Okay ... This gets my vote for dumbest post of the day.
For the record, Thomas was *NOT* a sure thing.
He was a protoge of Senator Danforth, a nice man and one of the more 'wobbly' Senators out there.
We had no reason to expect Thomas to be as good as he is, and no reason to expect Kennedy to be as bad as he is ... maybe its the confrimation process that did it. Maybe Thomas' independent streak helps him stay away from the DC Kool-Aid.
Frankly, Roberts is a bit more of a sure thing, because so many other conservatives know him personally.
An exhibit at Madam Tusauds?
A Stepford Judge?
A Pod Person from the planet Judas?
Yeah, gave us that other well-known left-winger Thomas too!
He looks like Lee Atwater.
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