From: http://scotusblog.com
Wednesday, September 14, 2005
Analysis: Some revelations on Day Two
Posted by Lyle Denniston at 12:29 AM
During a long day of senatorial questioning of Judge John G. Roberts, Jr., on Tuesday, the nominee to be Chief Justice was revealed as an interesting combination of a constitutional “originalist” and a believer that the Constitution changes over time – that it is in some ways a living document. To some observers, those seem like quite contradictory notions, but Roberts melded them in testimony that sounded much like a description of his own judicial philosophy.
If he follows that approach as a member of the Supreme Court, it would distance him from the Court’s two most conservative constitutionalists, Justices Antonin Scalia and Clarence Thomas. Both of them consider quite illegitimate the thought that the Constitution’s words should be given up-to-date meanings, as times change. Roberts drew a distinction between original motivation and the breadth of language actually chosen by constitutional draftsmen. One can accept why a provision was put into the Constitution, he suggested, but then see breadth -- and some fluidity -- in the concepts written into the document.
On a day when he was considerably more forthcoming than his liberal critics would concede, Roberts made a number of highly significant remarks about his philosophy. Sometimes, one had to read closely to get through the subtlety and the nuance of many of his answers to senators’ question. There were many comments that left unclear whether Roberts was stating his own views, or merely recounting what past Justices and Courts have said. But, on a perhaps surprising number of topics, the nub of what he thinks did, indeed, emerge. None, however, was more interesting than his view of “originalism.”
Discussing the 14th Amendment in various contexts, Roberts said that its authors should be taken “at their word.” Those who wrote it, he said, were dealing with the problem of the rights of newly freed slaves. “But they chose to use broader terms,” he told Sen. Charles Grassley, Iowa Republican. Racial discrimination was “the driving force behind it,” he added, but it is “perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination….That is an orginalist view because you’re looking at the original intent as expressed in the words they chose. And their intent was to use broad language, not to use narrow language.”
He made the same point in discussing Brown v. Board of Education with Sen. Herb Kohl, Wisconsin Democrat. The drafters of the Amendment chose broad language, he repeated. “I think it is perfectly consistent with an original understanding to argue and to conclude that their original understanding meant that segregated schools were unconstitutional. – not just in 1954, but at the time they enacted the amendment.”
And, to several senators, Roberts said that the 14th Amendment embraces a “right of privacy,” based on “the liberty interest” in its due process clause. And, he said quite boldly, “I agree that the tradition of liberty is a living thing, yes….Liberty is not limited to freedom from physical restraint…And it’s not protected only in procedural terms but it is protected substantively as well.”
When Sen. Dianne Feinstein, California Democrat, called the right of privacy an “implied right,” Roberts protested that it is not merely implied, but is in the Constitution as "part of the liberty that is protected under the due process clause.” He left no doubt that the right of privacy extends to women, and that the Court got it right in 1965 in Griswold v. Connecticut in concluding that "marital privacy extends to contraception and availability of that.”
A woman’s right to abortion, of course, is constitutionally grounded in a declared “right of privacy.” And, while Roberts was more cautious in discussing that aspect of privacy, he nonetheless made it appear that he was not eager to take away entirely the right to abortion by casting Roe v. Wade aside. Before a judge should ever confront the question of overruling Roe, he said, that judge should begin with deciding whether to overrule Planned Parenthood v. Casey, the 1992 decision partly reaffirming Roe. Casey, he noted, lays out the reasons not to overrule Roe, and that sets up an initial line of inquiry -- and a precedent "entitled to respect" before getting to Roe itself.
He seemed to solidify that point in his discussion of the doctrine of stare decisis with Committee chairman Arlen Specter, Pennsylvania Republican. “It’s not enough that you might think the precedent is flawed to justify revisiting it,” Roberts said.
And to Grassley, he commented: “You begin with a basic recognition of the value of precedent. No judge gets up every morning with a clean slate and says, well, what should the Constitution look like today?”
Much of those comments seem quite consistent with Roberts’ continuing emphasis on the value of judicial “modesty and humility.” He made another series of remarks marked by that same emphasis when he revealed, somewhat surprisingly, that he is quite hostile to the recent Supreme Court practice of looking to other nations’ legal understandings to help inform American judges in deciding U.S. constitutional cases.
One of his primary objections to that, he said, is that “relying on foreign precedent doesn’t confine judges. It doesn’t limit their discretion the way relying on domestic precedent does. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent.”
It should be emphasized, however, that Roberts was talking only about using foreign legal precepts as precedent, not as simply cultural guidance; the current Supreme Court majority does not actually use foreign law as precedent, but only as suggestive guidance that it deems worth considering. This, in fact, was one of the significant subtleties in his testimony.
Another subtlety came in discussing the now-discarded theory of the Bush Administration that the President is limited by no constitutional curbs in authorizing torture as a means of gaining intelligence about terrorisms – the so-called “Bybee memo” claim. Roberts left the impression with some observers that he thought the Bybee memo was an instance of presidential action "contrary to congressional authority” when presidential power would be at “its lowest ebb.” In fact, what Roberts said was that this interpretation was “postulated” by a senator, and thus he did not directly embrace it as his own perception.
Some of Roberts’ remarks on Tuesday seemed clearly aimed at disarming Democratic critics of his conservative views back when he was a young government lawyer. That appeared to be the case, for example, when he flatly stated that he did not think “it was the correct position to take” for the Reagan Administration to have supported tax-exempt status for a racially discriminatory college, Bob Jones University. That was stated as clearly as anything he said during the day or evening.
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