Bench Memos

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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




promises to question Roberts “aggressively.” I hope Specter isn’t considered kid gloves.

The First Question


Specter wastes no time and gets right into abortion!

Should Liberals Love Roberts?


Georgetown law professor Mark Tushnet and TNR’s Jeff Rosen debate here.

Sunstein at AEI


For those few who focus on these issues but aren’t going to be watching the hearings, University of Chicago law professor Cass Sunstien, author of Radicals in Robers: Why Extreme Right-Wing Courts Are Bad for America is speaking today on “How Should the Supreme Court Interpret the Constitution?” (Yes, you read that right. It’s at AEI, not CAP.) George Will and Jeff Rosen will comment.

Ashley or Mary-Kate?


John Tierney asks the hard questions.

I do half-expect Chuck Schumer to ask this one: “If Roe v. Wade were a tree, what kind of tree would it be?”

Otis v. AFJ


Lee Otis is taking on Nan Aron and Seth Rosenthal of the Alliance for Justice on this special left v. right judicial nomination blog set up by Knight Ridder. (How come it takes two of them? Can’t Aron fight her own battles?) As Bench Memos readers might expect, the AFJ folks are just as misleading over there as they are in their reports and as Aron was in her letter to NRO.

Supreme Court Ads


Senator Graham’s comments about the increasing politicization of judicial nominations were well put. But I did find one thing odd. In observing that it must be odd for Judge Roberts to sit at home with his family and see TV advertisements accusing him of heinous things, Graham made the off-hand remark that this must have been tough for Democratic nominees as well. Hmmm. That’s odd. I’m sure it’s possible that there were anti-Ginsburg ads or anti-Breyer ads — and I suppose it’s remotely conceivable that they were as vicious as some of the anti-Roberts ads — but I cannot remember a single one. It’s one thing to acknowledge Senate Republicans unfairly bottled up some Clinton nominees (which they did), it’s another thing to pretend that Democratic nominees have faced anything close to the sort of political attacks leveled at Roberts and other Republican nominees.

“Elections Matter”


This remark by Senator Lindsey Graham was perhaps the most important thing said by any of the Senators in their opening remarks at the Roberts hearing yesterday. It’s often said that the Supreme Court follows the election returns. In one important respect this is very true: Those who win presidential elections appoint justices to the Supreme Court. SCOTUSBLog’s Lyle Dennistonwas struck by Graham’s comment as well.

Re: Justice Owen?


In the column Jonathan cites, the usually level-headed Bob Novak has done it again, but even worse this time: In touting Priscilla Owen as the next justice, Novak asserts that her appointment would “guarantee a conservative court for 20 years.” But on the assumption that Owen would be a stellar justice, her appointment would not establish a conservative court for one day. As I explained in response to Novak’s similar (but more modest) assertion of a month ago, Justice Kennedy would still be the needed swing vote, and he cannot fairly be labeled conservative. Does Novak think otherwise?

Schumer’s Statement


As Schumer told Roberts what he should do “if you want my vote,” I could only wonder how Roberts could possibly care. Schumer voted against Roberts in committee on his D.C. Circuit nomination, and Roberts was confirmed. Schumer’s vote is equally immaterial here.


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