Bench Memos

Roberts, on the Record: “listening to this man, that he is a conservative.”

Rough transcript from ABC’s This Week yesterday:

STEPHANOPOULOS: And we begin today with that exclusive look at Judge John Roberts. Ever since President Bush picked him for the Supreme Court, we’ve seen a lot of him — thanking the president, schmoozing senators, hopping in and out of cars. We’ve also heard a lot of people talking about Roberts and what kind of Supreme Court justice he’d be — but barely a word from the judge. That’s the tradition. Supreme Court nominees don’t speak out until their hearings, and those don’t begin until early next month. But this morning, for the first time on national television, we have Judge Roberts answering the kind of questions he’ll get at those hearings. Roberts, himself, discussing some of the most contentious issues that come before the Supreme Court. The conversation took place before Roberts was nominated, before he was even a judge. It was first aired on July 2, 2000, when Roberts was interviewed on a public affairs program for ABC’s Dallas affiliate, WFAA. He was there to analyze the Supreme Court term that had just ended from a conservative perspective. It was a term steeped in controversy. With the Bush-Gore campaign at a fever pitch, the court had decided to prohibit prayers at high school football games, permit the Boy Scouts to ban gay troop leaders, and prevent a state from banning late-term abortions. Roberts discussed those cases with journalist Dave Cassidy, David Jackson and Carl Leubsdorf. And as you’ll see, he speculated about how the Bush presidency might change the court. Little did Roberts know that five years later he would be the man picked to change that court. (BEGIN VIDEOTAPE)

(UNKNOWN): Looking back at the recently completed Supreme Court session, what do you think were the most important things that it did?

J. ROBERTS: Well, as a — taking this term as a whole, I think the most important thing it did was make a compelling case that we do not have a very conservative Supreme Court. Take the three biggest headline cases, you know: Miranda, school prayer, abortion. The conservative view lost in

each of them.

(UNKNOWN): Now, how can that be, after we have nine justices, of whom seven were appointed by Republican presidents, only two by Democratic presidents? J. ROBERTS: Well, it’s an old story that the appointees, once they’re on the court, they tend to go their own way, and it’s not always the way that the presidents who appointed them predicted would be the case. (END VIDEOTAPE)

STEPHANOPOULOS: But it just happened that term. Republican appointees Anthony Kennedy, Sandra Day O’Connor and David Souter joined liberal justices to prohibit student-led prayer at high school football games.

(BEGIN VIDEOTAPE) J. ROBERTS: I think the argument about government-sponsored, government-initiated prayer in schools is over, but that’s not necessarily all that we’re talking about. The test, as I see it, is, if the prayer is genuinely student- initiated, student-led and does not look like something the government, the school district is sponsoring, then it’s going to be all right. But if the government is involved either in initiating it or sponsoring it, then you run into trouble.

(UNKNOWN): But isn’t an old argument, now that we’re so much more diverse, if I can use that word, so many more religions, isn’t it more likely that a Christian prayer that would have worked at a high school game in Texas, because mostly Christians were in the stand, hasn’t that changed? Is it worth fighting that fight anymore?

J. ROBERTS: Well, the fight really isn’t over does a particular prayer or invocation offend somebody in the audience. The issue is, is this being sponsored by the state?

J. ROBERTS: The real problem with the prayer before the invocation, before the football game case was that it had a history, and the history was that the schoolappointed a student chaplain and that student chaplain led the fans, in that case, in prayer. And when they changed that because of concern about constitutionality, the court said, no, this is still part and parcel of the same school-initiated, school-sponsored prayer. You have a situation where it’s not school-initiated, it’s school-sponsored, but it’s the students themselves or groups of students themselves who are engaging in prayer or religious activity. That’s an entirely different question. (END VIDEOTAPE)

STEPHANOPOULOS: And on the final day of that 2000 term, the court struck down a state ban on late-term abortions, an issue certain to confront the next Supreme Court. (BEGIN VIDEOTAPE)

(UNKNOWN): Is the basic right to an abortion pretty much sacrosanct at this point?

J. ROBERTS: Well, the partial-birth abortion case, one thing that did happen is that Justice Kennedy dissented from that ruling. Of course, he was part of the Casey triumvirate back in ‘92.

(UNKNOWN): Right. J. ROBERTS: He saw a distinction between the procedure in this case and the basic right to an abortion in Roe v. Wade. And Justice O’Connor, in her concurring opinion, basically laid out a road map and said if states want to pass laws banning what people call partial-birth abortion, here’s what you have to do to pass constitutional muster. So I don’t think that debate is over. I think it’s just starting a new round.

(UNKNOWN): What about the general debate? Because Vice President Gore and other abortion right supporters point out that yesterday’s vote was 5 to 4, and they’re basically saying that the entire right to an abortion, Roe V. Wade itself, is only hanging by a thread. Is that true?

J. ROBERTS: Oh, I don’t think that’s right, and you have to read — just read

Justice Kennedy’s opinion to understand that. What he’s saying is, This is different from the basic right to an abortion, and, therefore, I’m on the dissent. That doesn’t suggest that he’s going to abandon his position, which has been supporting the basic right to an abortion. So I think it’s — that right is protected right now by more than just one vote.

(UNKNOWN): Is the conservative counter-revolution on the Supreme Court over now, or can they regain momentum? J. ROBERTS: Well, I think a lot will depend on new appointments and the types of cases that do come before the court. But first and foremost, you know, this is a pragmatic court. Some of the defeats may not be as serious as they look. The Miranda case, for example, that really wasn’t a vote by all of these justices in favor of Miranda; it was more a stare decisis. This has been part of our law for a long time. We’re not going to unsettle it. So the defeat for the conservatives this year, although I think they’re real, is not as extreme as you might imagine.

(UNKNOWN): Any significant conservative victories, from your point of view, in these various rulings, some of things you might feel you did win?

J. ROBERTS: Well, there were some important victories in the First Amendment area, for example. The Boy Scouts case: People have the right to form groups like the Boy Scouts to promote particular values, and they can exclude people who don’t share those values. The same reasoning behind the California Democratic Party case in California. You may remember they had an open-blanket primary; anybody could vote. Last time people were worried, a lot of Democrats in the Republican primary voting for John McCain, does that throw it off? Here they said California can’t force the parties to allow anybody to vote.

(UNKNOWN): You said that a lot of these issues will depend on the future nominations to the court. How much difference would a Bush presidency make vis-a-vis a Gore presidency?

J. ROBERTS: Well, you know, it’s hard to tell because you never know if the nominees that they select are going to carry out any particular point of view or if, as has been the case with many nominees in the past, they chart a different course. But the fact of the matter is we do have a court with several members who have served for a long time and who would probably be expected to step down.

(UNKNOWN): Justice Stevens has been one of the more liberal members of the court, is, I think, the oldest member of the court, and there’s some others also, Justice O’Connor, maybe Justice Rehnquist.

J. ROBERTS: Sure. And depending upon which ones of those step down and who is appointed in their place, it could well make a difference. (END VIDEOTAPE)

STEPHANOPOULOS: And he’s the one who could make the difference. And for more on this, I’m now joined by two of our John Roberts experts: our White House correspondent Terry Moran and Linda Douglass, our Capitol Hill correspondent. And, Terry, let me begin with you. It’s just fascinating, after seeing all these photo-ops, to actually see John Roberts answering questions on specific cases and issues. What do you think this reveals about him?

MORAN: Well, it shows for the White House certainly, which I cover, they like what they see in this guy, and you can see why. He comes off as a very earnest,

very sincere, very judicious kind of person. He seems like the kind of guy who, if you walked into his courtroom, you’d get a fair shot from him.

MORAN: That said, there’s no question, listening to this man, that he is a conservative. He expressed disappointment about the way the Supreme Court had decided cases on abortion, school prayer, even Miranda. So it is clear where he is coming from, but the kind of demeanor we just saw there is precisely one of the reasons the president picked him.

STEPHANOPOULOS: Linda, what pops out at you?

LINDA DOUGLASS, ABC NEWS: Well, I think there was something in here for everyone. First of all, for the conservatives, he made it very clear that the current court is not conservative enough for him. He made it very clear that he considered it a defeat when Scalia and Thomas were on the losing side. That was very important for conservatives to hear. On the other hand, he talked about a basic right to abortion. He kept repeating that over and over again. Didn’t say that he agreed with it, but he certainly called it a basic right to abortion. So that’s why he is very, very careful in the way that he expresses himself in creating a certain enigmatic view of himself.

STEPHANOPOULOS: And, Linda, I wonder what you think, how Democrats and pro-choice groups might react to that. They’ve been trying to actually raise fears about John Roberts. What do you think they’re going to do with these statements?

DOUGLASS: Well, they will continue to point out the things that he’s said in his writings in the past, when he was representing the government, that Roe v. Wade should be overturned again. That was the government’s position at the time.

He was simply, he would say, acting as a government lawyer. He also made it very clear, though, that he thought there was room for overturning what’s called partial-birth abortion. That is something that is very important to the abortion-right. He also made it very clear, though, that he thought there was room for overturning what’s called partial-birth abortion. That is something that is very important to the abortion-right.

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