Analysis

A Conservative, Yes, but Not a Scalia

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By Charles Lane
Washington Post Staff Writer
Thursday, September 15, 2005

After two days of often intense questioning of John G. Roberts Jr. by the Senate Judiciary Committee, a new image of President Bush's nominee for chief justice of the United States is coming into focus.

Still blurry at the edges, thanks to Roberts's refusal to declare how he would rule on abortion rights and other specific issues, it is nevertheless a picture of a conservative different in important respects from the two members of the Supreme Court whom Bush has said he most admires, Justices Antonin Scalia and Clarence Thomas.

Scalia has said that courts should avoid basing their interpretations of laws on the history behind them; Roberts said there is a role for legislative history. Thomas has embraced an approach to constitutional interpretation that relies heavily on his view of the original intent of the framers; Roberts said that is not always possible.

Concretely, Roberts said he believes the Constitution creates a right to privacy. Such a right was recognized by the Supreme Court in modern cases protecting the use of contraception, abortion and consensual homosexual conduct, but which Scalia and Thomas have sharply criticized.

Asked by Sen. Charles E. Schumer (D-N.Y.) if he considered himself "in the mold" of Scalia and Thomas, Roberts replied, "I will be my own man on the Supreme Court."

While the differences may seem like nuances, they are likely to play an important role at the court, especially because Roberts has been named to fill the chief justice's chair.

As an eclectic legal thinker who can easily play at the same intellectual level as Scalia and Thomas, yet without employing the sharp rhetoric that Scalia especially is known to aim at colleagues, Roberts could exert a strong pull on the other justices -- particularly Anthony M. Kennedy, who, after Sandra Day O'Connor retires, probably will be left as the court's sole center-right swing voter.

Randy E. Barnett, a professor of law at Boston University and a leading thinker in conservative academic circles, likened Roberts to justices such as Felix Frankfurter and Robert H. Jackson, moderate conservatives appointed by President Franklin D. Roosevelt who "deferred to Congress, the executive and to legal precedent -- in some unspecified mix."

Roberts was perhaps most unlike Scalia and Thomas in his acknowledgment that the Constitution creates a right to privacy, even if such a right is not specifically spelled out.

Among the few cases he was willing to discuss specifically were a 1965 ruling, Griswold v. Connecticut , and a 1972 ruling, Eisenstadt v. Baird , which guaranteed a right to contraception use by married couples and singles.

Roberts said he agreed with the results of Griswold and Eisenstadt , noting that, in his view, privacy is part of the "liberty" that the 14th Amendment says cannot be taken away without due process of law.

Griswold and Eisenstadt formed part of the chain of precedents that led to Roe v. Wade in 1973.


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