Bench Memos

NRO’s home for judicial news and analysis.

No Higher Love


Jon Chait today reminds me: I assume Wilkinson is out of the running for any future openings for talking.

Roberts and Abortion


Here’s my explanation why John Roberts will not be a “pro-life” justice and why I hope that he will prove to be a genuine moderate.


Don’t Answer That Question


Matthew believes that a candidate’s views on gay marriage are permissible, which he supports with the following question:

“Why does it become a question that we must skirt today, precisely because more people have lost their minds and believe the answer may be ‘yes’?”

As luck would have it, there is a very simple answer: because there are now lawsuits which very well may end up in the Supreme Court, and the code of conduct for U.S. judges admonishes judges to “avoid public comment on the merits of a pending or impending action.” In other words, it doesn’t matter that the Supreme Court has not granted review in the case; if it is in the appellate pipeline (that is, if it is impending), then judges should avoid comment. Contrary to Matthew’s allusion, there is no frivolousness exception. Is it pending or impending? Then you don’t talk about it, even if it was at one time, or might be considered by some today to be non-meritorious.

It seems that a number of conservatives, including several on this page, would like to put the hot pokers to Judge Roberts and force him to answer well-crafted questions designed to elicit how he would likely rule in future cases. But even asking “gross” questions may be problematic if combined with pressing questions about the candidates view of stare decisis. Thus, if a candidate says that he believes that Roe or Lawrence were wrongly decided, and then is pressed to say that he believes that stare decisis carries little weight in questions of constitutional adjudication, then the candidate has functionally been asked about how he would rule in a panoply of subsidiary cases that are pending or impending before the court. Because ethical codes are interpreted to avoid the appearance of impropriety or partiality, they can’t legitimately be circumvented by such simplistic inquisitorial legerdemain. Based on the code of conduct for judges, the law of recusal, and applying a modicum of prudence concerning public perception of judicial objectivity, these are precisely the kind of questions that Roberts should not answer.

I Almost Don’t Believe


the Washington Post published this. Even in the Style section which has its ridiculous moments. Criticize the nominee. Goodness, write about the wife–which I think actually has unintended benefits for the country. But leave the kids alone. The little kids! A little common sense and decency, please?

More here–and some of the stuff that has been on the Internet, in some fairly prominent places (Kos, Wonkette) is really disgraceful.

RE: Questions


I have to register my dissent from Brother Levin’s strictures about the propriety of questioning Court nominees about their views on constitutional issues. I think Justice Scalia was wrong to recuse himself from the Newdow case on the Pledge of Allegiance, as I wrote here almost two years ago, and I argued here two weeks ago that broad questions of constitutional law are directly the business of all of us in any confirmation hearing for a Supreme Court nominee. Nominees may refuse to answer any question, of course, but there is nothing wrong with making their answers to them dispositive of one’s vote as a senator on confirmation.

Recently a correspondent asked me to elaborate on how I would distinguish between proper and improper questions. Here’s what I said:

I would distinguish between gross and fine questions of constitutional meaning. Take abortion as our example. It is clearly legitimate to demand an answer regarding the rightness or wrongness of Roe v. Wade. If a nominee says he believes there it was wrongly decided, we have the answer we want, and I don’t see how he compromises his judicial integrity by answering. We would still want to know how much force he regards precedents as having if they were wrong from the start, and such questions can be properly framed too. If he says, on the other hand, that he regards Roe as correct but is unsure about the scope of the abortion right and would prefer to reserve judgment about the finer points regarding particular partial-birth abortion bans, or just what an “undue burden” is, or whether a judicial bypass is adequate in a parental-notification statute–that’s another matter, and I’d let him off the hook. But of course we would have the answer we want on the gross question regarding Roe, wouldn’t we?

Or take the cluster of issues regarding gay rights. Surely every potential nominee to the Court has an opinion about Lawrence, and we’re entitled to know it. Disagree with Lawrence? Fine, we have an answer to a gross question. Agree with Lawrence, but haven’t decided yet about various spin-off questions? Then maybe we shouldn’t press, but we know what we want to know. I think gay marriage is a similarly gross question, whatever one might think about it as a mere extension of Lawrence. Consider it this way: Just fifteen years ago or so, a question about whether the equal protection clause entitled two persons of the same sex to marry would have been considered a risible question, with “NO!” the obvious answer for everyone but a handful of fringe law professors. Why does it become a question that we must skirt today, precisely because more people have lost their minds and believe the answer may be “yes”?

The fine questions regarding pending or foreseeable cases should be avoided because they are actually hard, where the gross ones are easy. And the fine ones are hard because they involve careful judgment regarding specific fact patterns. Assume the 14th amendment incorporates the 4th, and that the exclusionary rule is a legitimate gloss thereon. Then it’s a fine question whether, when a motorist stopped at a random sobriety checkpoint is compelled to open a backpack in his trunk when a drug-sniffing dog signals for contraband, the evidence discovered therein should be suppressed. But I don’t see why a nominee can’t be asked what he thinks of the gross questions whether the 14th incorporates the 4th, and whether the exclusionary rule is a valid gloss.


And So It Begins


Schumer press release from yesterday:


Senator’s Questions Touch Major Issues From the First Amendment to the Commerce Clause

Schumer Reaffirms Belief That Ideology and Legal Convictions Are More Important Than Personal Life In Evaluating Supreme Court Nominees

Today U.S. Senator Charles E. Schumer met with Supreme Court nominee John G. Roberts and presented him with a number of questions on his judicial philosophy ranging from the First Amendment to the Commerce Clause to the environment. Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, re-iterated his belief that questioning judicial nominees is a duty and not a privilege, which he first suggested that a nominee’s views and philosophy should be known in an opinion piece in the New York Times in 2001.

Schumer said that he believed a court nominees’ ideology and philosophy is fair game for questioning in a Supreme Court nomination hearing. “I have long believed that federal court candidates – who serve for life – should explain their judicial philosophy and their method of legal reasoning. They should be prepared to explain their views of the Constitution, of decided cases, of federalism, and a host of other issues relevant to that lifetime post.”

Schumer said there is a difference between asking about a particular case with particular facts, but asking broad questions about particular issues is acceptable. “I have always said that one should not ask a question specifically about Enron, because there are particular facts and parties involved, but one can certainly ask a question about a nominee’s views on corporate responsibility and the proper role of the federal Government in enforcing it.”


1. First Amendment and Freedom of Expression:

What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution?

! When can Government regulate public speech by individuals?

! When does speech cross the line between Constitutionally protected free expression and slander?

! In what ways does the First Amendment protect the spending and raising of money by individuals in politics?

! Can Government regulate hate speech? What about sexually explicit materials?


! Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard?

! Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment?

! What is your view on the distinction the Supreme Court drew in Buckley v. Valeo (1976) and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals?

2. First Amendment and the Establishment Clause:

Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?

! Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with any specific religion?

! Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives?

! What do you see as the Constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions?

! In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other?

! What is your view of the Supreme Court’s opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?

3. Commerce Clause:

Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, doing something it had not done in sixty years: striking down acts of Congress on Commerce Clause grounds.

! Do you agree with the trend towards striking down laws on this basis?

! What do you believe is the extent of Congress’s authority to legislate under the Commerce Clause?

! Can Congress regulate local trade in a product that is used nationally?

! Can Congress regulate labor standards for states and cities under its Commerce Clause power?

! How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate?

! Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity?

! What is the extent of the limitations imposed on state regulation by the Commerce Clause?


! Do you agree with the Court’s decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in and around schools using its Commerce Clause authority?

! Do you agree that it is the Commerce Clause that allows Congress to prohibit racial discrimination in public accommodations, as the Court held in Heart of Atlanta Hotel v. United States (1964)?

4. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?

! Does your answer depend at all on the length of time that the precedent has been on the books?

! Does your answer depend at all on how widely criticized or accepted the precedent is?

! What if you agree with the result but believe the legal reasoning was seriously flawed? Does that make a difference?

! Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?


! Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat’l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not?

! Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that it was unconstitutional (Roper v. Simmons). Was the Court right to overturn its precedent 16 years later? Why or why not?

! Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent 17 years later? Why or why not?

5. Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?

! What amount of deference should the court give to Congressional action?

! Should the Court err on the side of upholding a law?

! Do certain types of laws deserve greater deference than others? Regulatory laws? Criminal laws?

! How closely tied must a law be to an enumerated right of Congress under Article I for it to be upheld?

Let me ask you about a few cases in which the Supreme Court has struck down federal laws:

! Do you agree with the Supreme Court’s decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?

! Do you agree with the Supreme Court’s decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?

6. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?

! The word “privacy” is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the Constitution as conferring such a right?

! Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?


! Do you agree with the reasoning in Griswold v. Connecticut (1965), which held that the right to privacy in the Constitution protects the right of married couples to purchase and use contraception?

! Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?

! Once the right to privacy has been found – as in Griswold and Roe – under what circumstances should the Supreme Court revisit that right?

7. What is the proper role of the federal government in enacting laws to protect the environment?

! Does the Constitution provide any instruction on how Congress should balance the interests of industry against environmental interests?

! Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?

! Under the Constitution, how far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?

Let me put this in the context of specific cases:

! Do you believe that the Supreme Court correctly decided that the EPA has the authority to pursue industrial polluters in a state where the local authority has declined to do so, as in Alaska Department of Environmental Conservation v. EPA (2004)?

! Can the Clean Air Act preempt local emissions regulations, as the Court held in Engine Manufacturers Association v. South Coast Air Quality Management (2004)?

8. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?

! Does the Constitution provide any instruction on how Congress should balance the costs to business against the government’s interest in creating equal access to facilities for disabled persons?

! Should federal laws mandating access to buildings for disabled people apply to both public and private buildings?

! For example, do you believe that the Americans with Disabilities Act requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?

9. What is the proper Constitutional role of Government in enacting laws to regulate education?

! How far can the Government go under the Constitution to ensure equal treatment for all students?

! How far can the Court go to protect speech and/or prohibit violations of the establishment clause in the schools? For example, do you believe that Santa Fe Independent School Dist. v. Doe (2000) was decided correctly?

! Does the Constitution guarantee parents the right to choose their children’s education, as established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?

10. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.

! Is the “activist” label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?

! In cases where federal law and state law may be in conflict, who is the activist – the judge who voted to limit the federal law or the judge who limited the state law?

! Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?

! Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?

! What distinguishes one case from the other?

11. Do you describe yourself as falling into any particular school of judicial philosophy?

! What is your view of “strict constructionism”?

! What is your view of the notion of “original intent”? “Original meaning”?

! How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?

12. What in your view are the limits on the scope of Congress’ power under the Equal Protection and Due Process clauses of the 14th Amendment?

! Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?

! Do you agree that, under the Equal Protection Clause, disparate impact alone does not render a law unconstitutional, as the Court held in Washington v. Davis (1976)?

! Do parents have a Due Process right to make decisions concerning the care, custody, and control of their children, as the Supreme Court held in Troxel v. Granville (2000)?

13. Where is the line between civil rights questions that are political and questions that are appropriate for a court to decide?

! Do you agree with the reasoning in Powell v. McCormack? Why or why not?

! Do you agree with the reasoning in Baker v. Carr? Why or why not?

! Do you agree with the reasoning in Bush v. Gore? Why or why not?

• What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)?

! What role should the Supreme Court be playing in disputed elections?

14. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?

15. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia’s opinions, or Justice Ginsburg’s?

16. Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court’s holding or reasoning and discuss the reasons for your criticism?

It IS Campaign Season


I’m such a dork I might just order Judge Roberts wear.

David Kirkpatrick Pieces Like


this one have got to annoy the Democratic Senate warroom. How can he be an extremist if the right-wingers are worried he’s not extremist enough for them?

Obama and “Common Sense”


Senator Obama can now announce his support for Judge Roberts. The judge’s sisters say he has “common sense.” Senator Obama said earlier today that “good sense” is a more important qualification for a Supreme Court justice than being “smart.”

Here’s a rough transcript of the MSNB interview:

HOST: A few minutes ago Judge Roberts’s sister read a statement on behalf of their family.

PEGGY ROBERTS: My parents are extremely proud of their son and are thrilled with this moment. We are very close-knit family and take pride in the accomplishments of all our family members. However, this is currently number one on the list. John is a dedicated son, husband, father, brother, and uncle, and he takes these roles seriously and shines in each of them. Speaking on behalf of his sisters, we believe the best brother anyone could ever have is John. He provides us with his common sense, guidance, support, and wisdom whenever we need it.



Justice Scalia gave a speech about the Pledge of Allegiance, in which he took a position on the words “under God.” As a result he was compelled ethically to recuse himself from the case. A nominee for the Court, giving answers under oath, is under a similar obligation. It would be irresponsible to give direct answers to inappropriate questions.

GOP’s the Thing


Frankly, Schumer and company can demand whatever they wish, including attorney work product materials. But they don’t get them as long as the Republican majority is resolute and principled. To my way of thinking, the focus needs to be on the majority to ensure that it does the right thing.

The Impending Problem


As Schumer and the rest of the obstructionist coalition prepare their very specific questions for Judge Roberts, I just dipped into my archives: here’s a piece I wrote, which listed some of the inappropriate questions that Senate Democrats asked Miguel Estrada, and attempted to show why, consistent with the code of conduct for judges and recusal statutes, he was wise not to indulge in the sort of pre-judging that they sought.

Peculiar Patrick


From “The Hotline”:

Sen. Patrick Leahy (7/21) on his one-on one meeting with Roberts: “It was a very good meeting, where I told him that I’m very concerned about the creditability of the court…I told him I thought the Supreme Court had become a very activist court that has become to predictably right wing in recent years.” Leahy “said it was much to early” to determine how he will vote. Leahy: “Meetings like today’s do not substitute for a full and complete hearing” (Allen, Rutland Herald, 7/21).

Uh. What’s “predictably right wing” about the current Court?

Scorched-Earth Tactics


Charles Schumer, the second-most-junior Democrat member of the Senate Judiciary Committee, has already signaled his intention to launch scorched-earth tactics to thwart or stall the Senate’s confirmation of John Roberts to the Supreme Court. In particular, Schumer can be expected to press the Department of Justice to disclose Roberts’s confidential legal memos from his time in the Office of the Solicitor General.

Senate Democrats made this same demand in connection with President Bush’s nomination of Miguel Estrada to a D.C. Circuit seat. In response to that demand, all seven living former heads of the SG’s Office–Seth Waxman, Walter Dellinger, Drew Days, Ken Starr, Charles Fried, Robert Bork, and Archibald Cox–sent a letter to Senator Leahy (then chairman of the Senate Judiciary Committee) explaining why that demand was improper.

This remarkable bipartisan group of highly respected lawyers “attest[ed] to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process” and pointed out that the “unbridled, open exchange of ideas . . . simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” The letter further stated that “[a]ny attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests.”

The Justice Department also sent Chairman Leahy a long letter that explained how the Senate Democrats’ request would violate the separation of powers and run roughshod over established executive-branch privileges. The DOJ letter also pointed out since 1977 the Senate had approved 67 nominees to the U.S. Courts of Appeals who had had previous DOJ experience (including eight who had served in the SG’s office) and that the Democrats’ request was unprecedented.

Curiously, the Senate Democrats were so focused on preventing a Hispanic from being confirmed to the D.C. Circuit that they did not even notice the incongruity of their not making the same illegitimate request with respect to the then-pending nomination of Roberts to the D.C. Circuit.

If Schumer and other Senate Democrats demand any materials from the SG’s office in connection with Roberts’s nomination, that will be a clear sign that there is no principle of law or practice that Democrats will not trample in order to try to stop this nomination. And why stop with the SG’s office? If U.S. senators are going to violate separation-of-powers principles, why not demand that Chief Justice Rehnquist turn over his files from the year that Roberts clerked for him? And if established principles of privilege mean nothing, why not invade the spousal-communication privilege and cross-examine Roberts and his wife as to discussions they’ve had with each other?

Roberts, Harlan, and Roe


With all respect for Gerard Bradley, I strongly disagree with his argument that a justice can’t reverse Roe without imposing his own moral predilections. That view appears to depend on an argument that precedent is entitled to considerable weight. That argument is most dubious in the context of constitutional decisions. Any justice with a proper understanding of the judicial role would recognize that to uphold Roe is to violate his oath of office. As I explained in my recent Senate testimony, it’s time for all Americans, no matter what their policy views on abortion, to recognize that abortion policy should be restored to the people.

Feeble, Laughable PFAW--Part VI


The only case I have yet to address in People for the (Un)American Way’s silly 10-page hit job on John Roberts is Acree v. Republic of Iraq. This case presented the question whether Congress had provided plaintiff American prisoners of war who were tortured by Iraq in the first Gulf War the ability to obtain recovery from Iraq. All three members of the panel–Carter appointee Harry Edwards, Clinton appointee David Tatel, and Roberts–answered that question no. Edwards’s majority opinion determined that plaintiffs had no cause of action, whereas Roberts concluded that the court lacked jurisdiction over the case.

In an uncharacteristic display of fairness, PFAW actually discloses that the issue on which Roberts relied is one that the majority opinion calls “an exceedingly close question.” But PFAW cites the majority’s disagreement with Roberts without presenting any aspect of his meticulous statutory analysis. For starters, for example, Roberts pointed out that he was reading the key statutory phrase “any other provision” to mean “any other provision,” whereas the majority was reading it to mean “provisions that present obstacles to assistance and funding for the new Iraqi Government.”

Congress’s difficult balancing of the foreign-relations interests of the United States and the interest in providing remedies to Americans injured by foreign governments often presents wrenching issues. But PFAW’s effort to blame Roberts for the overall result that all three judges agreed Congress dictated is irresponsible.

Bottom line on PFAW’s report: Ten single-spaced pages of feeble attacks, not a single score.

A Bit of Humor


From the Daily Show:

JON STEWART: What has been the reaction in Washington?

ED HELMS: Liberals are outraged by Bush’s choice. They have been for weeks.

JON STEWART: Ed, they just found out about Roberts last night.

ED HELMS: That’s not the point. The Left wishes the president picked someone they wanted, not someone he wanted. I mean who gave him the authority? It’s abuse of power.

JON STEWART: I think it’s in the Constitution.

ED HELMS: What the Democrats are saying is they wish they had won the last election.

Alert the media!


Senator Obama is undecided! He fears the exceptionally smart, hard-working humble guy who grew up in Indiana might have “no sense.” From the AP:

WASHINGTON (AP) U.S. Sen. Barack Obama said Thursday he hasn’t decided whether he will vote to confirm Supreme Court nominee John Roberts.

Roberts clearly has the legal background and intellect to serve, Obama said. But the Chicago Democrat said he wonders whether Roberts has the wisdom and balance to be a Supreme Court justice.

“In every walk of life, you know people who are really smart but have no sense,” Obama said. “And what you hope for in a justice is somebody who is smart but more importantly also has good sense.”

Who Does John Roberts Remind Me Of?


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.

Coffin Talk


Amusing: From the WSJ today:

But Shannen Coffin, a lawyer who worked with Judge Roberts in the Justice Department of the elder Mr. Bush’s administration, cautions that “originalism has many faces.” While he expects that Judge Roberts “would look to the meaning of the text of the Constitution first,” he couldn’t predict how closely the nominee would resemble Justices Scalia or Thomas.
That would have made him the youngest member of the Bush I administration. I checked with SC (just noticed the initials–his destiny?): He was 19 when the Bush 41 administration started and 23 when it was over. (And no, he didn’t work at DOJ until the Bush 43 admin.)


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