Bench Memos

NRO’s home for judicial news and analysis.

re: ethics rules


Cornyn mentioned it in his opening statement yesterday:

That is one reason why the American Bar Association has long said that judges cannot ethically make any pledges with regard to cases or issues that are likely to come before them. It is also why every single Supreme Court Justice in the past has declined to answer questions during their confirmation hearings

whenever they felt their impartiality and independence might be threatened. As Justice Ginsburg—one of the last Supreme Court Justices confirmed by the Senate—noted not too long ago, “in accord with a longstanding norm, every Member of [the current Supreme] Court declined to furnish such information to the Senate . . . . [T]he line each [Justice] drew in response to pre-confirmation questioning . . . is crucial to the health of the Federal Judiciary.”

I know that some members of this Committee, through their questions, will try to entice you not to follow the rules of ethics and the long tradition described by Justice Ginsburg. But that should not concern you, Judge Roberts. Don’t take the bait. Do exactly the same thing every nominee—Republican and Democrat alike—has done. Decline to answer any question that you feel would compromise your ability to do your job. The vast majority of the Senate, I am convinced, will not punish you for doing so. Rather, I am convinced that the vast majority of the Senate will respect you for this decision because it will show you to be a person of great integrity and independence, unwilling to trade your ethics for a confirmation vote.

A State District Court Judge Points Out in an E-mail


The state and federal judiciary are bound by rules of ethics. Our state code states that a judge (including a candidate for office) “shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case.” There is a comparable federal rule as well. My question: has anyone mentioned this yet in the hearing and if not, why not?




I was worried about J.R’s answer when he started out, but I wonder if his “emanations and penubras” is a signal not to worry (this is a very rough transcript from Senate):

I agree with the gris wald’s court that marital privacy extends to contraception and availability of that. The court, since griswold, has grounded the pry si in the liberty interest protected under the due process clause. That’s the approach that the court has taken, in subsequent cases. Rather than in the [penumbras] and emnations discussed in justice douglas’ opinion. And that view of the result is, i think, consistent with the subsequent development of the law, which is pro fussed on the due process clause rather than justice douglas’ approach.
I am also told–by more legal minds than mine–that Justice Thomas gave a similar answer during his hearing.

Roberts on Brown v. Board


In explaining his position that Brown v. Board is consistent with the original meaning of the Fourteenth Amendment, Roberts cited now-Judge Michael McConnell’s scholarly work. I discuss McConnell’s 1995 law review article in this essay on Brown and originalism.

“Roberts, Pressed on Abortion, Cites Respect for Settled Law”


This is the New York Times’s misleading headline. I guess that “Roberts, Pressed to Discuss How Stare Decisis Applies to Abortion, Discusses Stare Decisis Generally” wouldn’t make a good headline, but it would have the virtue of accuracy.


Roberts on Roe


Two good analyses of John Roberts’ Roe v Wade comments.

1) Ron Cass—former Dean, Boston University Law School: “Judge Roberts showed a commitment to the rule of law and an understanding that not all precedents are created equal. Some are wrong when decided and grow weaker over time. So when Brown v. Board of Education overruled Plessy v. Ferguson, that changed the law but made it more coherent. Other precedents, even if on doubtful ground when decided, became stronger over time, as Chief Justice Rehnquist concluded occurred with Miranda v. Arizona. Roberts rightly said precedents vary in strength and overruling them on occasion is merited despite its disruption of the law.

“Judge Roberts specifically said that privacy interests are protected under specific constitutional provisions such as the 1st Amendment & 3rd Amendment, and 4th Amendment, which secure private worship, private thought, and private property against particular government intrusions – and also are protected as part of the liberty safeguarded by the due process clause.”

2) Leonard Leo, Executive Vice President, Federalist Society (on leave):
“Judge Roberts did exactly what any nominee before the committee should do in addressing Roe vs. Wade. Like Ruth Ginsburg, he refused to offer any hints or forecasts on how he would address the live issue of abortion. When pressed on whether he would treat Roe as binding precedent, he also did the right thing by declining to fall into that backdoor question about Roe.

“On the question of binding precedent, Roberts correctly noted that there are times when you reverse precedent and accept a jolt in the legal system, as with Brown v Board’s reversal of Plessy and the Supreme Court’s reversal of the Lochner ‘liberty of contract’ cases.”

“Worthy of Respect”


The Washington Post’s homepage is running with the headline “Roberts Says Roe v. Wade Decision Is ‘Worthy of Respect’”. As it happens, a text search of Roberts’s testimony indicates that he never used this phrase. And his statement that Roe is “entitled to respect” is merely a specific instance of his broader position that every Supreme Court precedent is entitled to respect. That respect calls for a justice to proceed carefully in determining to overrule a case, but does not itself bar overruling.

Cornyn’s Office Blasts Out a Response to Biden



During his questions to Judge Roberts, Sen. Biden just excoriated the judge for refusing to answer the same questions that Justice Ginsburg answered. Judge Roberts explained that Justice Ginsburg sometimes answered questions about issues that might come before the Court because she had already written on those issues and therefore had already expressed a view.

Sen. Biden then stated that he would ask Judge Roberts about a question that Ginsburg had answered but not written on: whether or not she agreed with Justice Powell’s opinion in Moore v. City of East Cleveland. Judge Roberts respectfully declined to answer because it could come back be the Court.

Biden then suggested that Roberts was violating the Ginsburg standard because Ginsburg had not written on the Moore case. But that’s inaccurate, as Justice Ginsburg herself explained (in her testimony before Sen. Biden’s committee):

“In taking the position I have in all of my writings on this subject, I must associate myself with Justice Powell’s statements; otherwise, I could not have written what I did.” (Testimony before the Senate Judiciary Committee, pg. 271)



From Manuel Miranda’s

Biden, Roberts, and the Ginsburg Standard


Biden is trying to make a big deal out of his charge that nominee Ginsburg in some instances did not in fact comply with her stated standard of providing “no hints, no forecasts, no previews” about any issues that might come before the Court. As I have previously explained, Biden’s charge amounts to an indictment of Ginsburg, not a reason why Roberts should answer any questions Ginsburg shouldn’t have.

oh good heavens


John “Neanderthal” Roberts just actually had to explain to Joe Biden that he thinks that women are full citizens.

“He’s Filibustering!”


Joe Biden just made that accusation against John Roberts on abortion. A Senate Democrat really shouldn’t throw that word around.

NPR on Roberts and Roe


Nina Totenberg and attorney Tom Goldstein are maintaining that Roberts (in Goldstein’s phrase) was “sending a very strong signal” that he wouldn’t overturn Roe. I don’t think that’s a fair reading of Roberts’s remarks, which seemed artfully designed to avoid expressing any view on the question.

Sunstein on Roe


Senate Democrats’ efforts to attack as extremist anyone who criticizes Roe is a bit complicated by the fact that Professor Cass Sunstein, one of the leading lights of the Left, is himself very critical of Roe. Here’s what he has to say in his latest book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (which I will be reviewing in an upcoming issue of National Review):

“[C]onservative critics are entirely correct to object to some of the Court’s liberal decisions, including Roe v. Wade itself.” (p. 19)

“Exemplifying perfectionism at its most extreme, [Roe] raised grave doubts about the Court’s use of the Constitution to solve divisive social controversies.” (p. 83) (“Perfectionism” is Sunstein’s label for a judicial approach that he rejects—in his words, “that the continuing judicial task is to make the document as good as it can be by interpreting its broad terms in a way that casts its ideals in the best possible light.” (p. 32))

The “right to privacy” relied on in Roe finds its real roots in the Court’s first invocation of substantive due process in the Dred Scott case. (pp. 82-86)

“Minimalists [which Sunstein calls himself] are greatly embarrassed by Roe, and rightly so.… [T]he Court badly overreached.… As a matter of constitutional law, protecting fetal life may well be a constitutionally sufficient reason to intrude on the right to choose.” (p. 106)

“[M]inimalists respect Roe’s critics. They agree that Roe has shaky constitutional foundations.” (p. 108)

It is true that Sunstein takes the position that Roe should nonetheless not be overruled, but even here his position is tepid: He asserts that “it is not senseless to think that, although Roe was wrong, and a big mistake, the Court should not now overrule it.” (p. 108) To say that something is “not senseless” is, of course, a far cry from saying that it is right.

Roberts on Right to Privacy


This Bloomberg story tries to make news out of what Roberts had to say about the Constitution’s protection for privacy. As I heard his testimony, I agree with everything he said. Roberts pointed out that various provisions of the Constitution protect privacy interests and merely described very generally what the Court has said about the protection that the Due Process Clause affords privacy interests.

Specter, Roberts, and JFK


Specter asked Roberts whether he agreed with JFK that “I do not speak for my church on public matters — and the church does not speak for me.” Roberts simply replied that he did. I wish he had instead said something like: “That’s certainly how I understand my role as a judge.” The notion that the religious beliefs of political actors should never influence their judgment on “public matters” is one that doesn’t take religious belief–and religiously grounded moral argument–seriously.

Specter, Roe, and Precedent


If my notes are correct, Roberts stated that Roe is “settled as a precedent of the Court.” At the same time, he repeatedly stated that he would not address how principles of stare decisis apply to any particular case. So it appears that all he means by the first statement is the factual observation that Casey reaffirmed Roe (and, as he said, that Casey would therefore provide the starting point for any stare decisis analysis).

Casey and Stare Decisis


Specter, as Kathryn notes, has wasted no time this morning getting to the abortion issue. His angle of attack is to ask Roberts about stare decisis–the doctrine of precedent–as it was described in 1992’s abortion ruling in Planned Parenthood v. Casey by the controlling joint opinion of O’Connor, Kennedy, and Souter.

But there was another account of how to think about precedent in that case, given by the man Roberts has been nominated to replace, and for whom he once clerked. William Rehnquist began his dissent (joined by Scalia and Thomas) in the Casey decision by deriding the joint opinion’s “newly minted variation on stare decisis,” and declaring: “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” And Rehnquist went on to set the record straight on what that traditional approach truly was.

Just in case anyone was wondering whether there was only one view of how to deal with precedents in that case . . .

“I Never Turned Down a Request”


for pro-bono moot-court work, Roberts just said, re: a Specter question on his Romer moot courting. I can handle that answer.

I probably wish he didn’t throw in that he might reconsider that routine if something were “morally objectionable” because it will be misinterpreted. But it needn’t be. As a legal friend puts it, “Romer was a case about discrimination by local governments, so you can separate the discrimination from the underlying act.”

Kennedy’s Questions



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