Roberts and Roe: Who Does John Roberts Remind Me Of?

National Review Online - Bench Memos ^ | 7/21/2005 | Gerard Bradley

[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.

[BaghdadBarney]

Conclusion: (1) Coulter might be right, (2) alot of high-profile pro-Roberts conservatives, like Hugh Hewitt, Jon Adler, Wendy Long and the rest may well learn to regret their cheerleading when it comes to this guy...

[Red Badger]

[dirtboy]

I think that to reverse Roe today

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.

[nuffsenuff]

Doubt it.

[scott7278]

 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.

[The Ghost of FReepers Past]

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.

[Sloth]

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.

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.

[frogjerk]

Conclusion: (1) Coulter might be right, (2) alot of high-profile pro-Roberts conservatives, like Hugh Hewitt, Jon Adler, Wendy Long and the rest may well learn to regret their cheerleading when it comes to this guy...

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...

[MarkeyD]

This guy? David Hewlett, Stargate Atlantis

[Echo Talon]

People were carping about Bush before knowing who he would nominate. Now they are carping about Roberts before he even takes the stand... Wait till the man screws up then start bashing him.

[MarkeyD]

Sorry, my bad.

[BaghdadBarney]

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...

[1Old Pro]

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.

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"?

[Zack Nguyen]

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 think this is what leftist judges do all the time.

[BaghdadBarney]

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.

[The Ghost of FReepers Past]

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.

[smonk]

no disrespect intended, but he reminds me just a little bit of fred flintstone. that thought occurred to me as I saw him walking to the podium with W during the press conference.

[traderrob6]

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.

[woofie]

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?

[Servant of the 9]

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.

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.

SO9