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.