Sen. Hillary Clinton’s statement that she will vote against John Roberts’s nomination rests, at bottom, on her objection to his not having committed not to overturn Roe v. Wade. But Clinton also had to combine nastiness and, I suspect, mendacity with her wrongheaded understanding of the judicial role.
In 1981 or early 1982, Roberts wrote a legal memorandum that argued for the constitutionality of various measures to strip the Court of jurisdiction over certain disputes. Roberts’s memo expressly states that he had been requested to prepare it “from a standpoint of advocacy of congressional power over the Supreme Court’s jurisdiction” and that it did “not purport to be an objective review of the issue.” Clinton asserts that Roberts’s “supporters,” in response to claims that Roberts would nonetheless abide by the views expressed in that memo, “remind us that Chief Justice Rehnquist supported the constitutionality of legal segregation before his elevation to the high court, but never sought to bring it back while serving the court system as its Chief Justice.”
Clinton thus places in the mouths of some supposed supporters of Roberts the hotly contested allegation that Rehnquist, as a law clerk to Justice Jackson when Brown v. Board of Education was first argued in the early 1950s, personally advocated to Jackson that the “separate but equal” rule of Plessy v. Ferguson should be maintained. But in purveying this allegation against the recently departed chief, she also leaves the uninformed reader with the impression that his alleged position came just “before his elevation to the high court,” rather than before Brown had been decided.
Have any of Roberts’s supporters in fact made this circuitous defense of Roberts? Reporters ought to explore whether this is another Clintonesque invention. It is in any event gratuitously nasty.