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Roe v. Roberts

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By Charles Krauthammer
Friday, September 16, 2005

In our lifetime has there been a more politically poisonous Supreme Court decision than Roe v. Wade ? Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.

The corruption continues 32 years later. You could see it played out hour by hour in the Senate confirmation hearings of Judge John Roberts. Question upon question that pretended to be about high constitutional principle was really about abortion in ill-concealed disguise.

Senators asked gravely about how deeply Roberts believes in upholding precedent. Do you think that any of the Democrats were concerned whether Roberts would uphold Richmond v. Croson , the precedent that outlawed racial quotas in municipal contracting? Or Boy Scouts v. Dale , which permitted the exclusion of gay Scout leaders?

This is all about Roe . Take the lines of interrogation about Roberts's belief in the right to privacy. They are not asking about search and seizure in your home. They are asking about the "right to choose" (a brilliant locution that expunges the ugly word abortion from all political debate about abortion) -- what Roberts in 1981 correctly termed the "so-called 'right to privacy,' " a skepticism he is now required to disavow.

Why? Because everyone knows what happened to Robert Bork when he forthrightly and honestly denied some kind of separate, newly hatched right to privacy.

And then there are the learned Judiciary Committee disquisitions on "originalism" -- the judicial philosophy by which Justices Antonin Scalia and Clarence Thomas try to anchor the Constitution in something real, i.e., the meaning of the words as intended and understood at the time they were written.

Originalism is itself highly problematic, the worst judicial philosophy except for all the others, because they permit unmoored and arbitrary constitutional interpretation -- and thus unmoored and arbitrary judicial power. The learned senators, however, really don't care much about originalism, except to the extent that it would, almost by definition, make Roberts a categorical opponent of Roe . Which is why Roberts denies that he has any ideology, any "overarching judicial philosophy," and is nothing more than an ad hoc, bottom-up type of guy.

Maybe he is. Maybe he isn't. But he knows that if he dares to say otherwise, he gets Borked. If, on the other hand, he pretends to have a mind so scrubbed of theory that he is at a loss to explain gravitation itself, he gets to be chief justice of the United States for 40 years.

In 2000 Al Gore declared that he would not nominate a justice who did not support Roe. Dianne Feinstein says today that if she determines that Roberts opposes Roe , she will be compelled to vote against him. For Democrats, abortion is an open litmus test. For Republicans, it is a test of agility: Can they find the nominee who might be against Roe but has been circumspect enough not to say so publicly and who will be clever enough to avoid saying so at his confirmation hearings?

Circumspect and clever Roberts has been. No one really knows. But I predict two things: (a) Chief Justice Roberts will vote to uphold Roe v. Wade , and (b) his replacing his former boss, Chief Justice William Rehnquist, will move the court only mildly, but most assuredly, to the left -- as measured by the only available yardstick, the percentage of concurrences with the opinions of those conservative touchstones, Scalia and Thomas.

I infer this not just by what Roberts has said in his hearings -- that he supports Griswold v. Connecticut , that he deeply respects precedent and that he finds Roe itself worthy of respect. That is little beyond boilerplate. I infer it from his temperament, career and life history as an establishment conservative who prizes judicial modesty above all. Which means that while he will never repeat Roe , he will never repeal it and be the cause of the social upheaval that repeal would inevitably bring.

Not that this in any way disqualifies Roberts in my conservative eyes. He is a perfectly reasonable traditional conservative, who will be an outstanding chief justice. He is just not a judicial revolutionary. If you're a conservative looking for a return to the good old days, you'll be disappointed. And if you're a liberal who lives for the good old days because that's all that liberalism has left, tell Chuck Schumer to relax.

letters@charleskrauthammer.com


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