Roberts Reviewed

The Famous Abortion Brief
An email conversation about the news of the day.
July 21 2005 11:23 AM

Roberts Reviewed

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Dear Cliff and Dahlia,

Both of you have posed a very good and specific question: What weight should one give to the fact that John Roberts was one of nine people who signed a government brief in the case Rust v. Sullivan containing these two sentences?

We continue to believe that Roe was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.

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I quote these sentences in full, including the tedious string of citations, for a reason. They don't even squarely say what the extreme liberal interest groups read them to say: namely, that the brief Roberts signed argues for overruling Roe v. Wade. Rather, these sentences simply point out as a statement of historical fact that the Department of Justice since 1983 had argued that Roe was wrongly decided. Given that the question in Rust v. Sullivan—whether doctors and clinics that receive federal funds may discuss abortion with their patients—would have been easily decided if the court had overturned Roe, it would have been at least anomalous and perhaps disingenuous for the Rust brief not to have acknowledged and reiterated the long-standing judgment of the Reagan-Bush I Justice departments.

So I disagree with Dahlia that "the call to go so far as to overturn Roe leaps beyond the question in the case and well into the realm of ideological advocacy." It was necessary and normal for the Rust brief to call the court's attention to an outcome-determinative argument consistently made elsewhere.

To be sure, the sentences do more than recount a historical fact. The brief's signers reaffirm that fact by stating that they "continue to believe" in the argument against Roe. But to credit any substantive significance to this affirmation, I think, we need to consider whether the signers of the brief had any realistic choice but to affirm.

By the time the brief was filed in 1990, there had been three presidential elections in which reconsideration of Roe v. Wade was a plank in the Republican Party's successful platform. The Department of Justice had filed six briefs to the court on the question. I have never spent time in the solicitor general's office, but perhaps Cliff can confirm that an about-face on Roe would have been quite surprising, if not unprecedented, without a change in administration. Even with a change of administration, it would have raised eyebrows. I recall a decision by Clinton Solicitor General Drew Days to confess error in a child pornography case—after the Justice Department in the Bush I administration had successfully prosecuted and won on appeal—that drew near-unanimous condemnation from Congress.

Finally, let's not forget that Judge Roberts was one of nine lawyers on the Rust brief, and one with a supervisory rather than creative role. Here is how he describes the process during his Senate confirmation hearings for his seat on the D.C. Circuit:

It's a very broad collaborative process. I don't think everyone's familiar with it. But when a case reaches the Supreme Court that might affect the federal government or in which a federal agency has been a party, you canvass the whole scope of the federal government. And in a typical case you'll get responses from 10 different agencies, sometimes all over the map, sometimes, you know, consistent in the position, a number of different divisions within the department, different offices all weighing in on what the position of the United States should be.

Once unpacked, I think that the two sentences from the brief with which I began form a very shaky foundation for the liberal interest groups' opposition to Judge Roberts. Perhaps that is why Kate Michelman, the former president of NARAL Pro-Choice America, in this morning's papers pegged her opposition to the fact that Roberts "was part of an administration that was philosophically opposed to Roe v. Wade." Given that breathtakingly broad definition of the enemy, I doubt that I and about half of America would be welcome at Michelman's breakfast table. But then again, I would probably not enjoy eating her grits.

Viet Dinh is a law professor at Georgetown University and was assistant attorney general for legal policy during the Bush administration from 2001 to 2003.

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