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Roberts on Roe:

This week Emily Bazelon wrote "The Front-Runners on Roe" for Slate, an article purporting to identify what is and is not known about potential Supreme Court nominees' views on Roe v. Wade. The nominees are divided into categories -- "hard-liners," "regulators," one "possible moderate," and "question marks," based upon their level of hostility to the landmark case.

Among the alleged "hard-liners" -- those most opposed to Roe v. Wade — D.C. Circuit judge John Roberts tops the list. What is Bazelon's evidence that Roberts would seek to overturn Roe? Only that Roberts did his job while working in the solicitor general's office in an avowedly anti-abortion administration. That's it.

In 1991, while Roberts was deputy solicitor general, he "co-wrote" the administration's brief in Rust v. Sullivan, defending the abortion "gag rule" barring doctors in clinics receiving federal funds from discussing abortion. True to the administration's position, the brief disavowed Roe, stating "We continue to believe that Roe was wrongly decided and should be overruled." On this basis, Bazelon places Roberts ahead of other short-listers who have strongly criticized Roe when speaking for themselves in judicial opinions or public speeches.

Perhaps anticipating the objection that Roberts was merely representing the administration's views, Bazelon notes the "stark language" of the brief Roberts co-wrote, but this hardly makes the case. Attorneys have an ethical obligation to zealously advocate the position of their clients. An attorney in Roberts position had an express duty to advance his client's -- the federal government's -- policy position as effectively as possible. If this meant attacking Roe head on (after all, Roberts did win the case, even if Roe was not overturned), Roberts would have been derelict in his duty had he softened the claim. This is particularly important because in the case of John Roberts, we are not talking about some wild-eyed zealot. Rather, we are talking about one of the most accomplished appellate advocates in the nation. The idea that the specific language used in a legal brief advancing his client's position establishes Roberts' personal views is quite a stretch, and is dangerously close to suggesting that one should impute the positions of former clients to the nominees (at least if they are presented in forceful terms).

It may well be that a Justice Roberts would seek to overturn Roe. By most accounts he is quite conservative, even if he is not known for provocative speeches and fiery dissents. But Bazelon does not support her claim -- not even close. If she had other evidence of Roberts views, she should have included it in the piece. As things stand, the (lack of) evidence presented makes her characterization of Roberts as the most anti-Roe of Bush's potential nominees to be quite undeserved.

UPDATE: In response to some of the comments below, let me add a few points. First, the only thing one can fairly infer from Roberts willingness to work as deputy Solicitor General in the Bush (41) administration is that he was in general agreement with the administration's legal philosphy. From there, however, one cannot assume that Roberts agreed with any particular administration position on any single issue.

Second, from Roberts willingness to co-author the Rust brief (rather than resign his position), perhaps one can infer that he does not share the same passionate attachment to Roe and constitutional protection for abortion rights as, say, the folks at NARAL Pro-Choice America. But that is a far cry from Bazelon's characterization of Roberts as first on the list of hard-liners who affirmative wish to overturn Roe. Maybe Roberts does wish to see Roe overturned, but maybe not. The most that can be said from Bazelon's evidence is that we don't know, and it was wrong for her to suggest otherwise without supporting the claim.

Third, Bazelon's characterization of Roberts is particularly hard to fathom when the relevant passage from the Rust brief is viewed in context. Courtesy of a VC reader, here is the relevant passage:

Petitioners argue that the Secretary's regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . 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.
All this portion of the brief did was restate the longstanding position of the Bush administration (and the Reagan administration before that). It hardly reached out to go after Roe, and it is hardly evidence of John Roberts' personal views on the subject.

Related Posts (on one page):

  1. Abortion War Over Roberts?!?
  2. Roberts on Roe:
A Blogger:
Pretty lame piece by Bazelon. Looking over her different examples, she doesn't seem to bother differentiating between he view points expressed by a) lawyers arguing a case, b) lower court judges following precedents, c) persons expressing their personal views, and d) whether that judge would vote to overturn Roe.
7.7.2005 11:08pm
Jim Rhoads (mail):
My pet peeve (although I realize how the game is now being played) is the use of briefs written by a candidate during his/her law practice as a sign of strongly held views which would influence judging. Even worse is the use of bench memos or memos of law advising a President or legislature of pros and cons of pending legislation or a court decision.

I hate to think of all of the memos, briefs, and opinion and demand letters I have written supporting one position or another over 40 years of litigation practice. To suppose that I could not write an equally persuasive brief, memo or letter taking the opposite position on many of these issues presumes that I am a lousy lawyer.

When one is an advocate, one advocates his/her client's position. When one is a good judge, he/she calls 'em as he/she sees 'em. Different functions, different results.
7.8.2005 12:00am
Nobody (mail):
I disagree. Granted, with the typical corporate lawyer, you can't tell a whole lot about his judicial philosophy by reading the briefs he filed, say, in a commercial dispute, or even a typical tort action (patent case, libel case, etc). But in arguing fundamental civil rights before the Supreme Court of the United States, one would hope that a lawyer would have a little more backbone. I believe strongly in the right of women to make choices with respect to their own reproductive organs, including the right to choose an abortion. If my employer or client asked--ordered--me to write a brief arguing that the Supreme Court should strip women of this constitutional right, I would say no. Every client has the right to a lawyer, but he doesn't have the right to ME. Had I been in Roberts' position, I would have politely declined to work on the Rust brief. Had my boss told me that it was a condition of my employment, I would have quit rather than write or sign on to the brief.

The anonymous Juan's post is a trifle disingenuous in this regard. Roberts never would have faced this dilemma because he was a political hire of a political appointee. If he wasn't someone who was willing to toe the company line on abortion, he never would have become deputy SG in the GHW Bush administration. The fact that he DID become DSG, and that he did write that brief (rather than, say, refusing to do so, or resigning), indicates that he doesn't think there's anything particularly wrong with the positions set out in the brief.

As a practicing attorney, I have done what I described above. When I was a junior associate at a large metropolitan law firm, I was asked to work on a federal court of appeals brief on behalf of a pro bono client who was suing a government entity for a claimed civil rights violation. The case was being handled by a very conservative partner at my firm, together with a conservative DC-based legal foundation. As a matter of conscience, I disagreed with the position being taken by the client and by my firm. When I received a phone call from my assigning partner asking me to work on the brief, I stated my objection, and asked to be assigned to a different case. The assigning partner gave me that line about every client being entitled to an attorney, and about how an attorney filing a brief doesn't necessarily have to agree with the client's position--he is an agent and a zealous advocate for the client, not for his own position. I replied that, while every client was entitled to an attorney, he was not entitled to ME. Particularly since it was a pro bono case (i.e., would not count toward my billable hours total), my working on the case would be a personal commitment by me, rather than by the firm in general--essentially, I would not be paid for the work I did on the case. I felt that my "volunteering" for the client's cause could be read as my endorsement of the cause, and I didn't want that. Moreover, I felt that the client had a reasonable chance of winning his case, that such a win would be a bad thing for the development of the law, and that I didn't want to have a hand in it. After a lengthy discussion, the assigning partner agreed to respect my convictions, and agreed to allow me to work on a different project instead.

These are the kinds of ethical struggles and dilemmas that practicing attorneys face on a regular basis. If Juan would step out of his ivory tower for a moment, he might know that.
7.8.2005 1:24am
Igglephan:
Juan, you draw a false distinction between being personally and professionally distinguished and a zealot. To wit: Justice Thomas, Judge Bork, and, if you prefer, Justice Douglas. The status of Roe was, at best, a secondary issue in the case, and there just weren't the 5 votes to overcome the Marks rule. Further, vigorously advocating the client's position is not the same thing as putting it in the bluntest language possible.

While I agree with Jim Rhoads in principle, the SG's office is a little different. It has institutional interests, and high-ranking advocates are really policy-makers on various areas of law. W/r/t positions Judge Sutton took in private practice, it's one thing, but Roberts (and Estrada) were representing the U.S., and often making up legal policy on the fly. Think of cases where the S.G. decides on what side to intervene, like in the Michigan cases.

My reaction to the Bazelon piece is that Judge Luttig does not count as a moderate simply for not throwing in red-meat dicta, a la Jones, Garza, and The General.

Anyone Bush nominates will vote to overturn Roe -- or so both sides will believe. I'd like to see Richard Posner or Alex Koizinski -- if we get a conservative, I'd prefer that there be a demonstrated record of independent thought going on. Alito ain't so bad, either.
7.8.2005 1:26am
PG (mail) (www):
Probably the most well-known instance of a memo's coming back to bite someone is Rehnquist's getting grilled at his confirmation hearings about the memo he wrote as a clerk for Justice Jackson in 1952 regarding Brown v. Board, which concluded that Plessy's "separate but equal" was correct constitutionally. Rehnquist said that the memo reflected Jackson's views, for the purpose of a conference of Justices, and this supposedly was supported by Justice William O. Douglas.

Presumably the only legal writing that does reflect one's personal views are law review articles. Bit of a disadvantage to the academics; the other nominees always can say that X was written on behalf of a client or employer, but the poor prof's gotta stand up and own her publications. And at the SCOTUS level, she can't even say, "That's what I believe the correct reading of the law to be, but of course I will follow the Court's precedents."

As for the unfairness of attributing views to someone merely because he has been a zealous advocate, I'm curious as to what the standard for proper advocacy is. For example, Judge Robert Smith of the NY court of appeals (equivalent of state Supreme Court) was an attorney for some death row inmates, but arguing the unconstitutionality of the death penalty probably would go against his own beliefs. If such an argument had even the slimmest of chances (say in a somewhat unsettled area of the law such as the constitutionality of the death penalty for raping a child), would he be obligated to make it?
7.8.2005 1:30am
Robin Roberts (mail) (www):
I'm astonished that anyone here would seriously defend the idea that impuning clients' positions to an attorney is a serious tactic for advice and consent on a judicial nominee.

Just astonished.

While nobody's experience with a pro bono issue is one thing, if he'd had that same position for a normal client were I his supervising partner, such a person would be asked to find other employment.
7.8.2005 1:37am
Nobody (mail):
Robin,
You assume too much. I was a highly valued employee--very qualified, very capable, very expensive to replace. There were other associates available. I'm confident that, within reason, and as long as I didn't make a general practice of it, I could have turned down ONE paying client, at least. When I was in law school, my ethics class read and discussed an article about the Arent Fox firm, which has many Jewish partners and associates, refusing, on moral grounds, to represent one of the Swiss banks in the "Nazi gold" litigations of the 1990's. This bank presumably had a retainer check in hand, and wasn't searching for a handout.

You miss the larger point as well. If a paying client had come to the firm asking us to argue in the Supreme Court to overturn Roe v. Wade, I would have asked not to be assigned to the case. If I was told that I had to work on the case, I would have given my notice that very day. (In fact, I might have left the firm for taking such a case even if I didn't personally have to work on it.) That's called conviction. If Roberts wrote the Rust brief, then he either (i) supports its contents or (ii) lacked the conviction to say so. Assuming arguendo that Roberts is pro-choice, he could have quit his job rather than write the brief. I'm sure that, even in the depressed legal market of the early 1990's, a Deputy SG would not have any trouble finding a job at any of the major litigation shops in DC. That he didn't quit, and that he wrote the brief, indicates that he did not find it unpalatable.
7.8.2005 1:53am
Nobody (mail):
Also, you probably meant "imputing," not "impuning."
7.8.2005 1:54am
John Steele (mail):
Nobody:

You are certainly free to sit in moral judgment of any lawyer who presents a client's position to which you object. Many people feel that way, for example, about criminal defense lawyers. Others feel that way about corporate lawyers. But as an empirical matter, when you say, "[t]hat [Roberts] didn't quit, and that he wrote the brief, indicates that he did not find it unpalatable," is simply a non sequitur.

In and of itself, it's not unlawful or unethical for a lawyer to present an argument he/she finds unpalatable. More to the point, lawyers do from time to time present arguments they find unpalatable. So making the argument doesn't indicate whether or not the lawyer found it unpalatable. While you can make any moral leap you want, no reasonable person can make that factual leap.
7.8.2005 2:15am
Nobody (mail):
John Steele,
My point--my original point--is that you are absolutely correct, when it comes to most issues. I wouldn't look at the briefs that a typical law firm partner filed in his corporate practice to find out his philosophy--he's mainly representing the interests of corporations, who are usually litigating against other corporations. He's a hired gun. My point is that abortion is different. It's arguably the most divisive civil rights issue of our times. It's not--it never is--just another issue. So my argument is that Roberts's brief in Rust tells us more about his judicial philosophy than, say, some brief he wrote the following week in a tax case that was before the Supreme Court.
7.8.2005 2:33am
James Kolbert (mail):
Based on what I have read, I respect John Roberts and hope he is confirmed to the Supreme Court. That he in part drafted the winning brief in Rust v. Sullivan is no disqualifier, even if he delighted in the victory.

First, one need only read Rust v. Sullivan to realize that the Justices pretend to avoid a constitutional question and then decide the constitutional question they pretended to avoid.

Second, one need only read Rust v. Sullivan to realize that the ultimate question decided is rather narrow in any event: it only reiterates the concept of a Constitution of Negative Liberties: that you have the liberty to exercise your rights does not obligate others to subsidize it and that the government provides a grant with burdensome conditions does not implicate the Constitution if you may refuse to accept the grant.

In sum, the Justices would have decided the question how they preferred even without "stark" rhetoric in the brief, as is evidenced by their misinterpretation of constitutional avoidance doctrine, and the decision they made was rather -- in the long-view -- uncontroversial.

How does tar John Roberts? If one wanted to tar John Roberts, you'd note that he's an advocate of the Constitution-in-Exile on environmental issues. The only problem is that he lacks an activist paper trail because he's actually

AN INCREDIBLY GOOD JUDGE.
7.8.2005 2:46am
Gene Vilensky (www):
Nobody:

The question wasn't whether Roberts was for or against Roe. It was whether he was a zealot. Maybe he opposes Roe to some extent, but maybe wouldn't overturn precedent (as in, he wouldn't have decided Roe the way it was decided had he been on the Court at the time, but he won't overturn it now).

In the case that maybe he was opposed to Roe, but is not a zealot against it, it would be entirely consistent for him not to quit that assignment. Presumably, quitting that assignment would mean that he has serious moral opposition to the argument required of him to make. But that would mean that Roberts believes that abortion is a fundamental right of women. No one ever claimed that. The claim that JNV is making is just that Roberts is not an anti-Roe zealot as Bazelon presents him to be. He might still be opposed to Roe, but is not an Operation Rescue-esque loon as Bazelon claims he is by labeling him a zealot.
7.8.2005 2:47am
CrazyTrain (mail):
I don't get conservatives sometimes. All I read from people on the righty blawgs is that Roe is the worst decision ever, the worst example of liberal judicial activism, the paradigm example of Justices imposing personal views over a proper view of the Constitution. But then when someone says that if a bunch of conservatives get put on the Court, Roe will be overruled, we always hear, "well, there's no evidence of that. Damn liberal media!"
7.8.2005 2:49am
Challenge:
"My point is that abortion is different."

Yes, if one doesn't vigorously defend the mythical constitutional penumbra which permits abortion of fetuses in the 8th month of pregnancy, then they're a troglodyte and simply do not understand abortion is THE civil rights issue of our time. PLEASE.
7.8.2005 4:11am
Challenge:
"But then when someone says that if a bunch of conservatives get put on the Court, Roe will be overruled, we always hear, "well, there's no evidence of that. Damn liberal media!"

Most conservatives HOPE whatever nominee is confirmed will overturn Roe. The point is that it's not prudent to label people as radicals or vehemently anti-Roe when his positions are not known. There are many jurists who make their personal positions very clear, and there are those who do not. Juan's point is that Roberts falls in the latter group rather than the former.
7.8.2005 4:15am
Wince and Nod (mail) (www):
Crazy Train,

This isn't a religious right conservative blog. It's a liberty and small government conservative blog.

Yours,
Wince
7.8.2005 9:53am
Adam (www):
Would it therefore be a fair question to ask of nomineesm instead -- "In Planned Parenthood v. Casey, the plurality wrote that to overturn Roe would be extremely difficult, because 'only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance' and therefore 'subvert the Court's legitimacy beyond any serious question'. Do you agree?"
7.8.2005 10:01am
Halpap (mail):
Nobody.

Just because many people have strong views about abortion, doesn't mean that everyone does. I care about abortion (I am opposed to choice in most circumstances), but it is fairly low on my list of legislative priorities. It may be that way for Roberts and he therefore had no problem advocating one way or the other in Rust.
7.8.2005 10:15am
John Jenkins (mail):
Nobody,

Even the Rules of Professional Conduct are against your position-representing a client zealously is never to be taken as support for the client's position as such, otherwise unpopular clients could not get representation. As lawyers we have a duty to the legal system higher than our personal predelictions. You are imputing your belief that

"abortion is the most important right" to everyone else, then judging them by that standard. Perhaps it's just not that important to them and they don't see it the way you do. Had the article made that accusation and been clear, it would have been honest in its biases and unsusceptible to attack. Either it doesn't contain that assumption and is poorly reasoned, or it does and is poorly written. Either way, the criticism is valid.
7.8.2005 10:30am
Daniel Chapman (mail):
Adam: I think it would be a loaded question since it uses abortion as an example, but I think asking a nominee's opinion on the use of precedent to guide a Justice's decisions would be helpful. It would be more helpful if the question wasn't attached specifically to a hotbutton social issue though.

Bottom line: I think a procedural question involving an abstraction like "precedent" or the like is far more acceptable than blunt demands for private beliefs on social/moral questions.
7.8.2005 10:35am
Adam Scales (mail):
Nobody,

I have great sympathy for your unwillingness to draw the common distinction between one's professional duties and sense of morality. I do not think that mob lawyers, for example, are entitled to the "Wasn't Me defense. This is one of the reasons I left law for teaching. And yet...

The facts of individual cases are so varied I think the opportunity to make sound judgment based on litigation positions are few. I remember being assigned to write a pro-drug testing brief for a legal writing class, and I was deeply opposed to it politically. I also came to see that it was the correct legal position under existing law. What is the proper weight to be given such an exercise?

You describe yourself as a corporate lawyer - and I take it you do litigation. I do not think you would care to defend approximately 90% of the positions you actually do as resonant with an abstract morality you endorse. It is not that I suspect you're working for obviously "evil" companies, but there is almost enough law to make any positiion pass the smell test. Do you think it would be difficult to find a stack of briefs you've written that "smell" bad to the reasonable observer?

I also think Rust is a very difficult vehicle for your argument. I'm pro-choice up and down the line, and conservative, too. One of the reasons I don't like the government being in the speech business is that invariably he who pays the piper calls the tune. I disagree with gag rules, but have enormous difficulty seeing how they are unconstitutional. Doesn't everyone have an issue that he feels strongly about? For you it's abortion - and not just the core right, but the periphery, too. Should Randy Barnett be disqualified because his (personally strongly held position) makes the War on Drugs more difficult? I actually have no idea if Randy support drug legalization, and I know he personally believes in the limited-government view he espoused in Raich. How am I to know what Judge Roberts thinks about the core right to abortion? Maybe his view is as nuanced as mine.
7.8.2005 11:05am
adam (mail) (www):
Daniel, I'm not interested in "blunt demands for private beliefs" on any questions -- I want to know whether, as a justice on the Supreme Court of the United States, a nominee believes he is free to upend a re-confirmed precedent upon which millions of women order their lives.

Maybe this is another way to ask the question:

"During the 1990-1991 term in Payne v Tennessee, Justices O'Connor, Kennedy and Souter all voted to overturn direct Supreme Court precedents to allow victim impact testimony to come into trial; the next term, all three refused to do the same with regard to reproductive freedom rights in the Casey decision because, in part, 'for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.' In a sense, the same occurred in Dickerson v United States, in which the Court held that the Miranda decision had become such a part of our legal culture that it ought not be overturned.

"Without getting into your personal beliefs on these issues, do you believe that certain precedents are less amenable to be overturned than others because of the public's reliance upon their rules, or do you believe that any case which this Court has decided wrongly ought to be reversed?"
7.8.2005 11:18am
Steve:
Juan's point is fair. Signing a brief is not necessarily dispositive of what one would do as a judge. It's a piece of evidence, to be taken for what it's worth.

Let's assume Roberts is personally pro-life. Based on that fact alone, he would probably have no problem writing a brief expressing the Administration's view that Roe v. Wade should be overturned. But that doesn't necessarily mean that if confronted with the same issue as a judge, he wouldn't think about stare decisis and other issues that enter into the equation.

If you want to see clear evidence that a judge would overturn Roe, look at Judge Garza's concurring opinions on the Fifth Circuit. THAT is the benchmark for clear evidence.
7.8.2005 12:10pm
Adam Scales (mail):
Adam,

Would you have wanted Strom Thurman asking that question of Brennan immediately post-Brown? (I THINK Brennan was a 1955 or so appointee).
7.8.2005 12:10pm
adam (mail) (www):
Recess appointment in October 1956; confirmed via hearing in February 1957, with only Sen. McCarthy (who Brennan had attacked publicly years before) asking hostile questions.

Casey addresses that concern in asking "whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed."

I think it's easy to argue that the central factual premises of Plessy had been undone by 1954 ("laws permitting, and even requiring, [racial] separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other"; "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it", etc.)

But this leads me to a long-standing question I've had about "overturning Roe" -- if five justices believe that the protections of the 14th Amendment extend to the unborn, then it doesn't really revert to the states, does it?
7.8.2005 1:00pm
Daniel Chapman (mail):
Adam: Sorry I wasn't more clear. I agree that a question about a potential Justice's view on precedent is valid. I didn't mean to say your question is a "blunt demand," just that those questions shouldn't be valid.

On overturning Roe: I don't think five justices would extend the 14th ammendment due process to include protections for the unborn, but if they did, you're right... it wouldn't revert to the states. It would be far more likely that five justices would say that the 14th ammendment does NOT extend to a substantive due process protection for abortion. The issue would then return to a state legislative matter.

Personally, I'd be just as offended by your hypothetical due process protection for the unborn as I am by the current situation. The Court has no right deciding things like that for us.
7.8.2005 2:07pm
Jim Rhoads (mail):
I respect Nobody's position. I do not consider it morally superior to mine. I was a criminal defense attorney while in the Army. Most of the time I strongly opposed the acts my clients committed and their motives for committing them.

Nonetheless I defended each zealously within the bounds of the law, often arousing the momentary displeasure of my superior officers and colleagues. I was a good defense lawyer and was recognized for my good results. I was rewarded with an outstanding efficiency report and appointment as prosecutor for the latter part of my assignment.

That was my baptism into the realm of advocating unpopular causes, there being nothing less popular in a wartime army than screw-up soldiers.

I did not have the luxury of tellng someone I didn't want to defend x because he was an evil person, or because I didn't agree in the abstract with the position I would have to advocate to attempt to gain his acquittal or a lesser sentence than was being sought by the command and the prosecution.

Some of the positions I took then would be indistinguishable from positions on the same issues in briefs written by the likes of William Kunstler (a radical lawyer of the day) and advocates like him who share very few of my politcal or philosophical views.

But I saw that as my duty as an advocate. I still think that was the professional, moral and ethical thing to do.
7.8.2005 2:08pm
Fred Vincy (www):
I am inclined to disagree with Juan's point that this evidence is not some evidence of Roberts' views, though I would have to read all of the briefs to be sure and, in any case, it is probably fairly weak evidence. The fact that he won without Roe being overturned suggests that he did not need Roe to be overturned to win his case. Normally, good advocacy involves arguing that the Court can find for your client without overturning precedent, so arguing for overturning Roe would seem to have been directed to future cases, rather than to winning the case at hand....
7.8.2005 3:26pm
Justin (mail):
While I don't think Nobody is "entirely" right, and I also do not think Robert's writing of the Rust v. Sullivan brief is "proof positive" of his desire to overturn Roe, it is pretty solid evidence, as it is unlikely that the administration was lacking for people who believed in overturning Roe v. Wade to trust the brief with someone who didn't have his heart in what is a VERY political issue.
7.8.2005 3:34pm
Challenge:
Liberals talking about the sanctity of precedent. Yes, we all buy that one.
7.8.2005 3:40pm
CrazyTrain (mail):
Conservatives talking about the sanctity of precedent. Yes, we all buy that one.
7.8.2005 3:48pm
Daniel Chapman (mail):
Interesting argument... how many high profile supreme court decisions can we think of that have been outright overturned and which "side" was responsible for the decision? I can think of 3 off the top of my head.

Lochner was overturned by "liberals"
Plessy was overturned by "liberals"
Bowers was overturned by "liberals"

All you smarter people should help me out.
7.8.2005 5:09pm
Challenge:
CrazyTrain, yes conservatives tend to have more respect for precedent. Isn't that fundamentally conservative--to conserve. But that isn't really the point. All judicial philosophies temper themselves with some degree of stare decisis. But as Scalia has written, one should be consistent in their application of stare decisis, rather than manipulative. The Court tosses it to the side in Lawrence, for example, but then invokes it as sacrosanct in, say, Casey. It's a fig leaf. In this way it is similar to the selection and unprincipled use of international law. Grab-bag jurisprudence at its finest.
7.8.2005 5:37pm
Justin (mail):
Challenge, if you can spend 3 years in law school and not regularly roll your eyes as justices and other theorists criticize the other side for something where the hypocracy is just flat out amusing, then you did not pay enoug attention.
7.8.2005 5:40pm
adam (mail) (www):
Hmm -- top of my head, recent SCT precedents overturned by conservatives include Booth and Gathers (in Payne v TN) (victim impact testimony) and Union Gas (Seminole Tribe) (11th Amendment).
7.8.2005 6:19pm
MichaelRo (mail):
I have to admit I am confused by Volokh's main argument.
The quote from the Rust brief "We continue to believe that Roe was wrongly decided and should be overruled," especially in the context given, implies that
the brief's authors think Roe should be overturned.
Their reasons that Roe should be overruled are that
Roe is based on completely faulty reasoning, not that, for example,
certain circumstances in the Rust
case constitute a compelling interest of the government for
protecting the fetus.

If the author thinks a court decision is based on faulty
reasoning, then either
a) he thinks it should be overturned
or
b) he thinks it should be upheld for other reasons

The latter case is precluded, since in the Rust brief,
it's argued "Since 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"

To say Roberts was just making as strong a case as
possible does not change the fact that he presumably agrees with
the statements in the brief (else he has made statements
in the brief he thinks are false, which would imply he
is a liar, which I don't think he is).

It is not the justice's personal beliefs that pro-Roe
activists care about; they care about whether he would
vote to overturn Roe, which can be inferred from his
arguments and decisions in prior cases.
7.19.2005 11:11pm
AJ (mail):
I don't pray but I would if I thought it would help Roberts be righteous to americans.
The civil rights of all amercians are at stake here. We only need to look back and see the third world religiously persecuted state that we came from.
History and science dictates that the we cannot go back to the days of a federal law that makes it a crime to take care of "your" health first.
It is astonishing to think that many people do not understand the reality of women. I cannot see how overturning RvW can help our duaghters,it could make them criminals for being victims of circumstance in a totalitarian/secular state. Let's move forward with education and science to understand what humans are capable of achieving.
Righteousness is only religeous if you are narrow minded.
7.20.2005 10:56am