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.