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.

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