The Democrats, at his nomination hearing, have evidently decided to register their aversion to John Roberts, and sound their favorite themes, but to save their explosions, properly staged, for the next appointment. For that is the appointment that will replace the “swing vote” on the Court, and all of the tension will now be transferred to those hearings yet to come. But to say that the Democrats are muting themselves is simply to say that they are modulating their nastiness. Dianne Feinstein affects a reasonable style–and then, without strain she attributes to the Nazis a religious passion and connects them then with other people, among us, animated by religious conviction. She likens Nazis in Germany to serious Christians in America–and from the Republicans comes no word of reproach. Once again, the party has taken the strategy of going into the clinch: Offer praise to the nominee, insist that we respect the intellect of Roberts, and confirm him without political sniping. But nothing is done to expose the emptiness of the arguments offered by most of the Democrats–and lay the groundwork then for a Republican counterattack.
A Teaching Moment?
About a year ago, I was having dinner with a friend who had just come through some abrasive hearings of this kind. I raised the question with him of why the tables could not be turned quite simply at these hearings, and the Democrats embarrassed. I suggested a quick two-step for making the issue of abortion work against the Democrats, and with that step, virtually bringing the attacks to a stop. He thought the strategy made eminent sense, but that it was unusable: He was doubtful, to put it mildly, that these hearings could be turned into a seminar. Even a deft nominee might have difficulty in converting the exchanges into a conversation that would draw out the questioners and expose them to serious embarrassment. And yet, as I argued, there would be a seminar–a grilling by the Democrats–whether the nominee sought it or not. In the first day of questioning, we’ve seen the seminar. John Roberts has been properly cautious and restrained, and plainly he is not intending to generate more arguments than Biden and Co. can really handle.
And yet, Roberts has pushed back at different moments, and in pushing back, he has revealed the possibilities that may yet be exploited–if he is willing to try just one subtle turn of the wrench, and if the Republican senators can only be delivered from their slumber and actually do something to help. Roberts pushed back when he finally told an aggressive Ted Kennedy that was misstating Roberts’s position on the renewal of the Voting Rights Act of 1965. At another moment Roberts was further pressed: Didn’t the Supreme Court in Brown v. Board of Education (1954) insist that it was necessary to look at the practical “effects” of segregation in the schools? All of this was to lay the groundwork for the further claim that the Congress was right, in later years, in adding tests of “disparate effects” to the statutes on civil rights: instead of asking whether there had been any real intention to discriminate on the basis of race, the law would threaten employers with heavy sanctions if even fair methods of hiring produced racial results that were uneven. Roberts properly responded that the Court in Brown had put the accent on the wrongness of discrimination, quite apart from its effects. There he gave the Court more credit than was warranted, for the judges never did explain why racial discrimination was wrong in principle. And as for the “effects,” a scrappy Roberts might have pointed out to Senator Kennedy that the Court had produced no evidence at all of an adverse effects of racial segregation on the performance of children in the schools, either in the schools involved in the case, or schools anywhere else in the country. Roberts might have turned the question simply by asking Kennedy whether the Court had indeed produced any such evidence–and where it would be found in the opinion that Kennedy was citing. As for Kennedy, he is shameless enough to absorb the hit–and then quickly change the subject. But what if the Republicans on the Senate Judiciary Committee did not let him slide away from his embarrassment on that question–or on the most vexing issue of all, the matter of Roe v. Wade?
In the course of an exchange, as questions are posed, he or the Republicans on the committee could point out that even lawyers are often confused about the meaning of Roe. One friend, at a leading law school in the country, found that only 5 of the 25 colleagues she polled could give an accurate account of Roe. If they could be drawn into this question, Senators Leahy and Kennedy might be tempted to draw on the reigning clichés of the day and say that Roe established the right of a woman to choose an abortion in the first three months of her pregnancy. But Judge Roberts could decorously correct them. What Roe and its companion case (Doe v. Bolton) established was the right to order an abortion throughout the entire length of the pregnancy for any reason at all. It could be ordered even at the point of birth if a woman would suffer distress–some strain on her “mental health”–if that choice were denied her. Is that what the senators would have Judge Roberts affirm? If so, they would be demanding, loudly, in public, a position that is supported by only 22-24 per cent of the country. That is not how most people understand the “right to abortion.” Even Kennedy and Biden are not likely to declaim at that moment that the only defensible policy is one that is rejected by three quarters of the American people.
But in holding back, as they must, they give John Roberts the chance to draw, even gently, this first critical admission: that even the pro-choicers will concede that there are instances in which abortions would be unjustified, and could rightly be forbidden. With that first step in place, it is simply a matter of pivoting to the second step, which finally puts the problem away. Judge Roberts could quickly–and decisively–note that he may not say more: For him to pronounce, right then, on the restrictions that are justified or unjustified is virtually to invite the legislation, and the litigation, that he would be asked later to judge. End of story, end of exchange. And the end, perhaps, of the subject of abortion in these hearings.
It Depends What Your Meaning of “Settled” Is?
Unless the Democrats want to press Roberts on what he could have meant when he pronounced the issue of abortion as “settled.” I myself have argued for years that the holding in Roe was indefensible at the moral root, and as John Roberts said, in a brief of 14 years ago, that the decision finds no basis in the text or history of the Constitution. And yet, as a matter of prudence I too could sign on to the notion that Roe could be considered settled law, for the public has evidently come to believe that something of that decision deserves to be sustained. It turns out also that a large portion of people in the country, even “educated” people, seem to believe that the overturning of Roe would mean that the Court had rendered abortion illegal in all parts of the country. Under those conditions, the prudent course could be to avoid setting off a panic and treat Roe as settled in some way for the moment. And as it turns out, Roe could be overruled, in effect, in a series of cases, without the need to pronounce it overruled. As we have seen in the surveys, the support for “abortion rights” peels away as we move, case by case.
At this point, Republicans could weigh in and offer some telling help. They might ask Judge Roberts whether the decision in Roe v. Wade “settled” anything, or even said anything, about these kinds of questions, which continue to arise in litigation:
‐A legislature accepts the “freedom to choose,” but insists that a woman use the form of abortion more likely to bring forth the child alive. Is the right to abortion a right to be separated from an unwanted pregnancy, or a right to insure the death of the child? In 1976, in the Danforth case, the Court deflected one attempt, of a legislature, to encourage the abortion that was not lethal. But was this matter ever addressed in Roe, and might the problem not be posed again?
‐If a child survives a “live-birth” or an induced abortion, is there an obligation to sustain the child? Or is the right to abortion the right to an “effective abortion” or a dead child? One federal judge held that the child, in this setting, was not protected by the law; but Congress, in 2002, decided it was–and no Democrat voted in opposition (the Born-Alive Infants’ Protection Act).
‐In the classic understanding, an action taken out of ignorance is not a voluntary action. May a legislature act to insure that the decision to abort is not taken out of ignorance, or that a woman is not coerced into the decision? For some it has made a difference to know that there is a beating heart, or that the child is sucking and moving her tongue. Is there anything in Roe v. Wade that bars the authorities from providing this information, or even asking a woman what she wishes to know about the state of the child she is carrying? Or for that matter, is it incompatible with the “right to choose” that a woman be required to learn something more about the surgery she is choosing when she is ending another human life?
‐No surgery in this country can be performed on minors without the consent of their parents, except of course for abortions. If a legislature insists that the parents are informed, or that they are available to offer help with medication, does Roe v. Wade actually say that the decision must always be left in the hands of strangers who are judges, rather than the family? Could Congress forbid the taking of a minor across the lines of a state for the purpose precisely of evading these restrictions, which are still compatible in principle with the “right to choose” abortion?
Judge Roberts could honestly report that none of these matters is taken up in Roe, and none of them is foreclosed by any principle of “choice” articulated in that decision. None of them, therefore, is part of any law “settled” by Roe v. Wade. Just what part is settled will have to be left to judgment of the Court, as the problem is played out case-by-case. Judicial decisions, as moral judgments, have the quality that the philosophers refer to as “open textured”: They are never quite closed off. There are always questions offering alternate paths into the problem, running back to the reasoning at the core of the case.
The critical turn in the law may come if Justice Roberts helps to flip the decision that struck down the laws on partial-birth abortion in the states. Sandra O’Connor was the swing vote in Stenberg v. Carhart (2000), but John Roberts could make the difference in sustaining the federal bill. If that is done, the Court will be saying, in effect, that it is in business now to consider anew this long chain of cases offering restrictions of various kinds on abortion. What would follow then is a long line of cases, moving in small steps, with the Court upholding one restriction after another on abortion, each one modest, each one regarded by the public as plainly reasonable. When that happens, the regime of Roe v. Wade will have come to an end, without even the need to pronounce it over.
–Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.