THE WANDERER, SEPTEMBER 22, 2005
JOSEPH SOBRAN'S
WASHINGTON WATCH
Roberts and Precedent
Just when I was starting to warm to John Roberts and
take hope for his easy confirmation, right in the middle
of his confirmation hearings he made me swallow hard.
Nearly everyone was impressed, almost awed, by
Roberts's poise, even some of his feticide-obsessed
antagonists who realized how smoothly he was showing them
up. For most people the hearings would have been
grueling; Roberts didn't even seem to break a sweat.
True, Ted Kennedy called his views "mean-spirited,"
Delaware's Joe Biden said his answers were "misleading,"
and California's Dianne Feinstein made it clear that her
mind is not about to change on "reproductive rights," as
she calls baby-killing.
But allowing for such bigots and fanatics, it looks
as if Roberts has ensured himself a quick,
filibuster-proof confirmation as chief justice of the
United States. Even Charles Schumer, the original
aggressive New Yorker, couldn't find much fault with him.
An ironic twist in the story has arisen from the
sudden death of Chief Justice William Rehnquist. Instead
of becoming Sandra Day O'Connor's replacement, Roberts
will, at least for a while, become her boss. Her
retirement will finally become effective when someone
else is confirmed to take her place, allowing her to go
back to Arizona where she belongs.
I liked Roberts's careful jurisprudence and his
modest view of the judge's role: to serve as umpire, not
to hit or pitch. I admired his simple eloquence when he
remarked that nobody comes to the ballgame to see the
umpire. I was willing to give him the benefit of doubt
when he said that Roe v. Wade is now "settled law"; that
didn't rule out the possibility of its being reversed,
because he also said that even important precedents may
be reversed when they prove "unworkable."
As he was facing liberal senators of both parties, I
understood that he had to tread carefully. And he was
doing so with great skill. He wasn't shy about
contradicting his opponents, "with respect." And his
careful responses were too thoughtful to be dismissed as
mere waffling.
Even when he agreed that the Constitution recognizes
a right to "privacy," I could agree. In limited senses,
it clearly does, as in the Third and Fourth Amendments.
We are protected from unreasonable search and seizure and
from having soldiers quartered in our homes.
But when he seemed to approve the Supreme Court's
rationale in Planned Parenthood v. Casey (1992), my blood
froze. Not only did that decision uphold Roe; it did so
on grounds that the Court's own prestige was a decisive
consideration. American women had come to depend on Roe
in planning their lives, the narrow majority held. They
would lose faith in the stability of law if the Court
should now reverse itself.
Well, millions of white Americans may have lost
faith in the stability of law in the 1950s, when the
Court reversed its own earlier rulings on the
constitutionality of state racial segregation; but who
uses that as an argument that those reversals were wrong?
After all, segregation wasn't "unworkable." On the
contrary, it can be plausibly argued that integration has
failed. (Why are we still arguing about civil rights more
than half a century later?)
In Casey, the Court made a radical departure.
Instead of doing its normal job of deciding between the
two parties before it, it actually declared itself a
party and ruled in its own favor! To use Roberts's
metaphor, the umpire very much became a player, and
awarded himself the game! The Court's own interest
trumped other considerations. And the whole idea of the
rule of law is that nobody can be judge in his own case.
That's why we have courts to settle disputes. If the
courts themselves become interested parties, the very
purpose of having them -- disinterested justice -- is
obviously defeated.
I heartily agree that the stability of law is vital.
And it was vital in 1973, when the Court struck down the
abortion laws of all 50 states, denying them even the
fundamental and traditional power to protect innocent
human life against violence. That decision was
revolutionary in its flagrant contempt for both human
life and law; and now the revolutionaries are demanding
stability?
Maybe this is what Roberts was thinking when he
seemed to be agreeing with the liberals who were grilling
him. We'd better hope so.
But after Warren, Brennan, Blackmun, Stevens,
O'Connor, Kennedy, and Souter, it's high time
conservatives became as wary of Republican judicial
nominees as the Democrats are.
It may be all very well to talk about stare decisis
-- the principle that judicial precedents should be
followed -- when the Constitution isn't at stake. But
when it is, the principle becomes dubious. Federal judges
are sworn to uphold the Constitution, not simply defer to
other judges' opinions about it.
Roe is an infamy. So is Casey. Both should be
overturned; and with all due respect for Roberts's tact
and maybe (under the circumstances) necessary guile, I
wish he weren't being quite so coy about it.
(You can now read Howard Phillips's thoughts on the
nomination of Judge Roberts in his essay "Roberts for
Rehnquist Is a Net Loss," a SOBRAN'S Internet Exclusive,
at www.sobran.com/articles/Phillips-Roberts.shtml)
New Light on Roe
The papers of Justice Harry Blackmun, author of the
majority opinion in Roe v. Wade, have now been made
available. They seem to show that the Supreme Court never
intended to create an unqualified right to abortion on
demand and was surprised at the backlash the ruling
created.
The Court's hope was apparently that it would
encourage moderate "reforms" of restrictive state
abortion laws, not forbid all limits on even late-term
feticide. Hence Blackmun's nearly forgotten distinctions
among "trimesters." In fact Blackmun himself seems to
have forgotten them, since he later took pride in the
decision and its actual, gruesome results.
An interesting, gossipy account of the making of
Roe can be found in THE BRETHREN: INSIDE THE SUPREME
COURT, by Bob Woodward and Scott Armstrong. The book says
William Brennan and William O. Douglas had instigated the
ruling, but got Blackmun to write it; Brennan feared the
anger of fellow Catholics, and Douglas's liberalism was
too notorious, and the radical decision would be more
readily accepted from a conservative-seeming Midwesterner
and Nixon appointee.
Blackmun, then a newcomer to the Court, gladly took
on the assignment, but did so badly in the early drafts
that the cagey old liberals wound up virtually holding
the pen for him.
+ + +
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