Some of you have asked me to comment on John Roberts' confirmation hearings. I'm sorry, but I can't. In my capacity as a journalist, Roberts might come before me as chief justice, and he's entitled to know that I'll consider his arguments with an open mind.
Just kidding! I knew you'd never fall for that one. I've been watching Roberts, just like he's been watching the Supreme Court. I've got opinions about him, just like he's got opinions about the court. The difference is, I'm going to level with you.
First of all, I like this guy. You can tell from those Reagan-era memos that he's got a deliciously caustic edge. Second, the "humility" he's projecting to disguise that edge is either self-deception or fraud. Third, in practice, he's no more committed to a right to privacy than Robert Bork was.
On Monday, Roberts told the Senate Judiciary Committee, "Judges have to have the humility to recognize that they operate within a system of precedent."
On Tuesday, Roberts demonstrated how a clever judge, veiled in humility, can operate within a system of precedent to overturn precedents.
Roberts was asked about Planned Parenthood v. Casey, the 1992 opinion that reaffirmed Roe v. Wade based on precedence. He called Casey "one of the precedents of the court, entitled to respect like any other precedent." Five times he repeated the phrase "like any other precedent."
Why couch the point this way? Because if Casey deserves no more respect than any other precedent, all you need to overturn it is a contrary precedent. That's what happened to some of the court's other landmark opinions, according to Roberts: The court decided that "intervening precedents had eroded the authority of those cases." So, the recipe for overturning Casey, and ultimately Roe, is to create intervening precedents, starting this fall with Ayotte v. Planned Parenthood.
On Monday, Roberts told the committee, "Judges are not politicians."
On Tuesday, Roberts refused to comment on Roe and Casey, saying he had to keep an "open mind" on issues he might adjudicate. Yet he commented freely on other cases, notably Griswold v. Connecticut, which established the right of married couples to use contraception. Why the distinction? Issues involving the former cases "are likely to come before the court," he explained, whereas the latter "are not, in my view, likely to come before the court."
Roberts was right: Legislatures are likely to restrict abortion but wildly unlikely to ban contraception. But that's the calculation of a politician, not a judge. That's why Roberts, unlike Bork, said he'd strike down anti-contraception laws both men knew they'd never face. The cases "unlikely to come before the court"—the ones no sane legislature would challenge—are the ones so politically settled that it's safer for a judicial nominee to affirm them than to stay neutral. If Roberts were using the "unlikely to come before the court" standard for judicial rather than political reasons, he'd be able to name at least one settled case with which he disagrees. Maybe somebody will ask him that question tomorrow.
On Monday, Roberts told the committee, "President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do."
On Tuesday, Roberts demonstrated how our own judiciary can purport to grant rights while leaving them nearly empty.
Roberts was asked to locate the right to privacy in the Constitution. He quoted parts of the Bill of Rights pertaining to military occupations and invasions of citizens' homes. Does the right to privacy extend beyond those contexts? Roberts offered one addition: "I agree with the Griswold court's conclusion that marital privacy extends to contraception." Sen. Dianne Feinstein, D-Calif., pressed him about the extension of contraceptive rights to unmarried people. "I don't have any quarrel with that conclusion," he allowed. What about Lawrence v. Texas, the 2003 case that interpreted Griswold to bar prosecution of private sex between consenting adults? Roberts ducked the question, citing "the difference between the issue that was presented in Griswold and its ramifications." In other words, any claim of privacy beyond the specific "issue" in Griswold—the right to marital contraception—is a "ramification" Roberts might reconsider.
Sen. Arlen Specter, R-Pa., asked Roberts whether the right to abortion "is so embedded that it's become a part of our national culture." Roberts demurred, explaining, "That gets to the application of the principles in a particular case." Feinstein asked Roberts whether the "right of privacy applies to the beginning of life and the end of life." Roberts begged off again, arguing, "The exact scope of it, with respect to the beginning of life and the end of life—those are issues that are coming before the court." Feinstein asked Roberts about his pro-privacy remarks to Sen. Ron Wyden, D-Ore. Roberts affirmed the "right to be left alone" as "a general statement of the principle." But he cautioned, "With regard to particular restrictions [Wyden] was talking about ... I don't think it's appropriate to comment on."
You get the picture. Privacy is a principle so general that its assertion against any "particular restriction" unspecified in the Constitution, aside from a ban on married people using birth control, is a mere "ramification" or "application" open to review. By refusing to define privacy's "scope," Roberts eviscerates it.
On Wednesday, Sen. Joe Biden, D-Del., asked Roberts, "Do you think the Constitution encompasses a fundamental right for my father to conclude that ... he does not want to continue on a life support system?" Roberts replied, "I cannot answer that question in the abstract." Six sentences later, Roberts said he couldn't comment because "those are issues that come before the court." It's too abstract ... it's too concrete ... whatever.
Sen. Chuck Schumer, D-N.Y., told Roberts, "I assume that you disagree with Justice Thomas' view that there is no general right to privacy, as he stated in Lawrence." Roberts replied, "That question depends, obviously, on the modifier and what you mean by 'general.' " Schumer tried again: "You would disagree that there is no general right to privacy in the Constitution?" Roberts answered, "I wouldn't use the phrase 'general,' because I don't know what that means. I don't know if, by saying 'general,' they're trying to describe the particular scope to the right to privacy or not." Twice more, Schumer asked about a right to privacy. Twice more, Roberts said he didn't know what "general" meant.
That's the privacy Roberts is offering: No scope, no modifiers. Not particular, not general. Bork had the same view. "Privacy to do what, Senator?" he asked one of his inquisitors in 1987. Bork presented this view, honestly and fatally, as a critique of privacy rather than an affirmation of it. Roberts has learned.