Joseph Sobran’s
Washington Watch

Roberts and Precedent

(Reprinted from the issue of September 22, 2005)

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 decisi — 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.


 
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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Joseph Sobran