Dear Colleague:

John Roberts did a fine job avoiding the traps laid for him by liberal
senators in their questions this past week, and we think he deserves to be
confirmed as Chief Justice of the United States.

Steven W. Mosher
President

PRI Weekly Briefing
16 September 2005
Vol. 7 / No. 36


Stick by Roberts
By Joseph A. D'Agostino

Watching or reading about John Roberts' responses to Democratic senators'
pressing of him for his views on Roe v. Wade and the so-called right to
privacy on which it was dishonestly based, pro-lifers could get the
impression that the chief justice nominee is another anti-Constitution
stealth candidate.  It's true that Roberts has never publicly committed
himself on Roe's unconstitutionality, and it's possible that, even if he
believes that Roe is unconstitutional, he would not vote to overturn a
33-year precedent that has spawned such a large and vociferous anti-life
apparatus.  He could be conservative in the strict sense and not wish to
upset the apple cart by overturning Roe any more than he would by imposing
same-sex marriage on America-i.e., he would not agree to court rulings
that make things worse but also would not agree to any that undo
long-standing damage when that damage has become an entrenched part of
American jurisprudence and society, as Roe has.

No one can guarantee that Roberts will vote to overturn Roe.  It's not
provable from the public record if Roberts is a keep-things-the-same
conservative or a more principled conservative.  But now that his
testimony is concluded, I continue to believe that conservative and
pro-life Americans should hope Roberts is confirmed.  Roberts has given
every sign that he believes in restoring constitutional government (see
the Weekly Briefing, "Confirm Roberts," July 22, 2005), and his wife even
worked for Feminists for Life.  An explicitly anti-Roe nominee, though
preferable, could have great trouble winning confirmation in the Senate,
where there are enough liberal and moderate Republicans to join with
Democrats to vote such a nominee down.  And Roe isn't as entrenched as all
that, even from the perspective of a jurist who places the stability of
the law above all else, which Roberts probably is not.

As Sen. Sam Brownback (R.-Kan.) said during the hearings, Roe has been and
continues to be controversial.  It's been controversial in Congress and
the state legislatures, where laws challenging Roe have been passed again
and again.  It's been controversial in the courts, including the U.S.
Supreme Court, which has revisited the scope of Roe again and again and is
slated to do so yet again this judicial term.  And it's been controversial
among the American populace, a large proportion of which rejects Roe while
many others have their doubts about it.  So even a conservative in the
strict sense has plenty of grounds for reexamining Roe afresh, and
returning decisions about abortion to the elected representatives of the
people-which is, after all, all that overturning Roe would do.  Is that
really so radical?

If I am wrong and President Bush has lied to us about the type of jurists
he nominates, and Roberts ends up betraying the Constitution, all those
who believe in the rule of law, and the pro-life cause, then it's probably
time for pro-lifers to dump the standard two-party political system and
turn to third parties.

Roberts' answers to Democratic senators' questions on Roe and the right to
privacy, when carefully parsed, don't reveal anything substantive, surely
his intention from the start.  He certainly gave hints that he might want
to overturn Roe.  In responding to questions from pro-abortion Senate
Judiciary Committee Chairman Arlen Specter (R.-Pa.) about Roe and the
importance of following precedent, he said, "Whether or not particular
precedents have proven to be unworkable is another consideration on the
other side-whether the doctrinal bases of a decision had been eroded by
subsequent developments."  Not only have the factual bases of Roe and its
companion case of Doe v. Bolton been exposed as fraudulent by the actual
plaintiffs in the cases, but the Supreme Court was widely viewed as
eroding Roe (doctrinally, though not in a way to restrict actual
abortions) in its Planned Parenthood v. Casey decision in 1992.

For example, Roberts said, in discussing the principles that govern
precedents, that the Casey decision was one "in which they [the Supreme
Court justices] went through the various factors on stare decisis and
reaffirmed the central holding in Roe, while revisiting the trimester
framework and substituting the undue burden analysis with strict scrutiny.
 So, as of '92, you had reaffirmation of the central holding in Roe.  That
decision, that application of the principles of stare decisis is, of
course, itself a precedent that would be entitled to respect under those
principles."  To read Roberts' testimony in its entirety, go to:

http://www.washingtonpost.com/wp-dyn/content/linkset/2005/09/14/LI2005091402149.html

Saying that a Supreme Court precedent is entitled to "respect" is just a
judicious way for someone like Roberts to show respect to the Supreme
Court and legal system.  To be a justice or judge in a system descended
from English legal principles, you must show respect for a precedent, even
as you blow it out of the water.

Roberts gave similarly noncommittal answers to other questions on Roe and
the right to privacy, which he refused to generalize as a broad
dispensation, though some senators wished him to do so.  We continue to
believe that John Roberts will make a fine member of the Supreme Court.


Joseph A. D'Agostino is Vice President for Communications at the
Population Research Institute.


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