Supreme Joke

Bob Somerby brings up something today that has bothered me for some time:

A caller to C-SPAN’s Washington Journal said that Roberts should be required to state his views on the case. As a general matter, we agree. But [Charles]Lane expressed a different view—a familiar view which has never seemed to make any real sense to us:

LANE (9/12/05): Well, the dilemma of this situation is that everybody wants to know this, everybody wants to know about it, and yet if Judge Roberts were to declare flatly at his hearing, “I would vote to overturn Roe. v. Wade,” the decision that established, or recognized, the constitutional right to choose abortion, he would then be in a position where he might have to recuse if such a case came to the Court later on because the person bringing the case could sday, “He’s already said how he’ll vote.” So in a way, Judge Roberts, just like many others who have come before the Court, face that essential dilemma.

But where’s the dilemma? Surely, Roberts knows whether he thinks Roe was correctly decided. If he thinks it was wrongly decided, he must know, as a general matter, what he thinks the decision should stand as a matter of “settled law.” (Indeed, he called Roe “settled law” in his confirmation hearing for the District Court.) Would Roberts have to recuse later on if he said what he thought about Roe? We can’t imagine why. As matters stand, sitting Justices like Scalia and Thomas have openly said, in prior rulings, what they think of Roe v. Wade; indeed, in a January 30 Post profile, Lane himself described Scalia as “an opponent of the 1973 Roe v. Wade decision that established a constitutional right to abortion.” Does anyone think that Scalia’s prior statements would force him to recuse in the future? The notion is completely absurd—and yet the logic is widely applied to Roberts, as Lane does above.

For years judges have been dancing around hot button issues in their confirmation hearings. I understand they do this for political reasons. But people seem to just blithely accept this notion and it’s never made any sense to me either.

John Roberts has repeatedly asserted today that he cannot answer questions about any cases that may come before the court because to do so would prejudge the case. He says, for instance.

“Let me explain very briefly why. It’s because if these questions
come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court – not on the basis of any commitments during the confirmation process.”

So, he’s basically saying that he can only speak in the vaguest of terms about abstract legal issues because otherwise he would jeopardise his objectivity.

Now consider this dissent from Planned Parenthood vs. Casey by Antonin Scalia:

My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and concurring in judgment), and Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Akron II) (Scalia, J., concurring). The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, “where reasonable people disagree the government can adopt one position or the other.” Ante, at 8. The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” ante, at 9–but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example–which entire societies of reasonable people disagree with–intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution.

His views are exquisitely clear. Why then are we to assume that he can view any new case on this issue that comes before the court with an open mind?

Meanwhile, we are forced to believe that future Chief Justice John Roberts, whom Lindsey Graham just called one of the finest minds in our time, will not be able to keep an open mind if he tells the Senate where he actually stands on issues about which virtually every American has an opinion. What kind of silly kabuki is this?

Clarence Thomas got around this by saying he’d never thought about these issues, which was absurd. I don’t think anyone thinks they can get away with that again. So they’ve created this ridiculous rationale that if prospective judges discuss their political philosophy, express their views on commonly discussed issues or even their views on a particular settled laws, they will be unable to keep an open mind when a related case comes before them. Indeed, Charles Lane said that they would have to recuse themselves!

As Somerby asks, does anyone think that Antonin Scalia believes that he should recuse himself from hearing any cases that Roe vs Wade may be a part of since he has clearly stated that it was wrongly decided in his dissents? Of course not.

Roberts certainly cannot discuss a specific case that is coming before the court.But there is no reason that he or any other judge can’t say publicly whether they believe a specific case was decided correctly or if they agree with the principles on which it was decided. That’s what judges do. Or so I thought. I guess now we must pretend that a person is a blank slate until the day she decides her first casepertaining to any issue, at which point she can express opinions freely ever after and still maintain objectivity.

I realize that this little misdirection makes it possible to pretend that we have confirmation hearings instead of anointment pageants, but it’s insulting nonetheless.

Roberts is obviously a very, very smart lawyer. He talked circles around everybody on the committee today. There is no doubt in my mind that he will craft beautifully reasoned, elegant decisions that will result in as much destruction of the last 75 years of social and economic progress as he can politically get away with.

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