The Careful Lawyer


Who is John Roberts?

After days of Senate hearings and as the Senate votes on whether to appoint him to be one of the youngest chief justices in Supreme Court history, that's the question many are still asking.

If he is confirmed, as seems likely (we go to press before the vote), he will be in a position to make a decisive mark on the Supreme Court in our lifetime. And that means he will have as great an impact on our nation's laws as any other public official.

What will that mark be? Register columnist Mark Shea, in a mock headline on his website (, summed up the feelings many of us had as we watched the hearings:

“Mysterious Man Makes Ambiguous Remarks About Roe v. Wade.”

Trying to parse Roberts' statements in the hearings was enough to make your head spin. The attempt strikes you with three thoughts. First, that Roberts is extremely bright. Second, that he is keeping his cards close to his vest. And third, that he has given both sides in the abortion debate reasons to hope.

The unspoken question at the heart of much of the grilling of Judge Roberts was this: Would you favor overturning the Court's Roe v. Wade decision, which legalized abortion in all 50 states at any time in an unborn child's development?

That was what was really at issue in the protracted discussion of stare decisis (Latin for “to stand by that which was decided”), the judicial principle that precedent decisions are to be followed by the courts.

When does Roberts think a precedent can be overturned?

The guidelines he gave are the same ones that are commonly given in legal textbooks. Here's how Roberts put it: “If particular precedents have proven to be unworkable — they don't lead to predictable results; they're difficult to apply — that's one factor supporting reconsideration. If the bases of the precedent have been eroded — in other words, if the Court decides a case saying, ‘Because of these three precedents, we reach this result,’ and in the intervening years, two of those are overruled — that's another basis for reconsidering the precedent.”

How does this apply to Roe? Let's look at his “workability” rule first. The good news: At one point in the hearing, Roberts acknowledged that even Clinton appointee Justice Ruth Bader Ginsberg has said that Roe v. Wade is a weak and confusing decision.

The bad news: He also said that the Supreme Court, in Pennsylvania v. Casey, itself explained that Roe v. Wade is workable.

Said Roberts: “[I]n its decision in Casey, the Court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The Court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case. In doing so, the Court unambiguously concluded that Roe has in no sense proven unworkable.”

Later, he added, “That determination in Casey becomes one of the precedents of the Court, entitled to respect like any other precedent of the Court, under principles of stare decisis.”

What about the principle dealing with previous precedents? What does Roberts think of the precedents that Roe is based on?

The good news: Roberts said, “I do think that the framers' intent is the guiding principle that should apply” in questions of any question of interpreting the constitution. The Constitution is the mother of all precedents, and the framers of the Constitution certainly did not intend to legalize abortion.

The bad news: Roberts had high praise for the specific precedent on which Roe is based: Griswold vs. Connecticut, the 1965 case legalizing contraception.

“I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that,” said Roberts. “The Court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.”

So, would Roberts overturn Roe v. Wade or not? As Roberts himself pointed out, that's like the question that was put to Lincoln in the famous Lincoln-Douglas debates. Everyone wanted to know if, when elected to the senate, Lincoln would uphold the pro-slavery Dred Scott decision.

Roberts said, “Lincoln was a very careful lawyer in his responses.” Maybe Roberts thought he was imitating Lincoln and being a very careful lawyer in his own responses.

But he should also remember the clarity with which Lincoln zinged Douglas in the debates. Lincoln said Douglas was too clever on the topic. “This man sticks to a decision which forbids the people of a territory from excluding slavery, and he does so not because he says it is right in itself — he does not give any opinion on that — but because it has been decided by the Court,” said Lincoln. “A decision of the Court is to him a ‘Thus saith the Lord.’”

America doesn't need another Stephen Douglas right now.