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A Conservative, Yes, but Not a Scalia

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.

In a 2003 case, Lawrence v. Texas , the court invoked this right to strike down all state laws banning consensual sex between same-sex couples.

Scalia has practically made a career out of attacking the court's past cases in which it has read specific "substantive" rights into the 14th Amendment's liberty clause. For him, and for many other conservatives, "substantive due process" is a contradiction in terms that gives judicial activists license to convert their own views into constitutional law.

Dissenting in Lawrence , he wrote disparagingly of Griswold and the "so-called right to privacy"; Thomas, agreeing with a dissenting justice in Griswold , said he could find no such right in the Constitution.

There is, however, a limit to the daylight between Scalia and Thomas, on the one hand, and Roberts on the other.

Roberts stopped well short of endorsing Roe -- or calling for its overruling -- in the hearings.

Social conservatives who support his nomination said they were generally comfortable with his testimony, which some said privately was what he had to say to help get confirmed. At the same time, it is also possible that Roberts will change his views once he is on the court.

As Schumer pointed out yesterday, Thomas gave a similar answer to Roberts on the right to privacy at his 1991 confirmation hearing, but struck a different note it in Lawrence .

Still, there was other evidence that Roberts, while he might or might not reach the same results as Scalia and Thomas, would approach cases in a different way.

Sen. Charles E. Grassley (R-Iowa) asked Roberts: "To what extent do you share Justice Scalia's view on unreliability of legislative history?"

Roberts replied that, though the interpretation of a law or the Constitution has to begin with the text, "I have quoted and looked to legislative history in the past to help determine the meaning of ambiguous terms, and I would expect to follow that same approach on the Supreme Court."

Whereas Scalia and Thomas often look to strict rules of statutory or constitutional interpretation to keep judges from taking over the legislative or executive function, Roberts repeatedly emphasized the restraining influence of what he called "the judicial process."

Harking back to concepts he learned at Harvard Law School, Roberts depicted judges deliberating within a kind of insulated environment in which the only materials they take into account are existing law, legal briefs, the case record and the views of other judges.

"It's basically an emphasis on legal craftsmanship," Barnett said. "You take a smidgen of history, a dollop of text, a spoonful of precedent and ladle it all over a very sensitive treatment of the facts and that yields a very high-quality product."

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