Update (9/14): Kevin Funnell:
So, John Roberts believes that Roe v. Wade was “settled as precedent.” So was Plessy v. Ferguson. Nice answer, which signifies nothing as to how he’d rule if the right case was presented to overrule Roe v. Wade.
————————————————————————————————
1991 — “We continue to believe that Roe was wrongly decided and should be overruled.” (Source)
2005 — The case giving women the “right” to choose to kill unborn babies is “entitled to respect.” (Source)
As I have emphasized repeatedly, this issue presents complex moral and judicial ethical issues. I’m just disappointed (but not especially surprised, I guess, given the politicization of the confirmation process) that Roberts so blithely opted for the easy way out.
Roberts didn’t take the bait. He said that, while precedent is important, new facts and information could provide a basis for the Supreme Court to overturn a bad precedent-setting decision like Roe.
“Whether or not particular precedents have proven to be unworkable is another consideration on the other side — whether the doctrinal bases of a decision had been eroded by subsequent developments,” Roberts said.
As Senator Biden asked questions he was not all that interested in hearing the answer. He constantly claimed that he was running short on time as Judge Roberts attempted to answer.
Senate Panel Opens Roberts Hearings
The Senate Judiciary Committee today opened the first confirmation hearing for a chief justice nomi
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RE: “The case giving women the “right†to choose to kill unborn babies is “entitled to respect.â€
I am assuming that he is saying that he will continue to use Roe v. Wade as a precedent regardless of his own personal feelings.
Comment by Dkelsmith — 09.13.05 @ 1:03 pm
Dkelsmith,
Isn’t that what it’s about? Because, to use his own personal feelings, he’d be like one of those darn left-wing activist judges!
Comment by Mike M. — 09.13.05 @ 1:14 pm
It is what you call, making sure you get in.
Comment by Dell Gines — 09.13.05 @ 1:16 pm
I agree, Dell. I think Roberts is now in a position where he feels the need to, more or less, tell the senators what they want to hear as opposed to how he really feels, for fear of being denied “entry” into the SC. But, no matter what anyone says, I, as a liberal, feel he should be easily confirmed. He’s the best we’re gonna get. To huff and puff now will do no good. Confirm him!
Comment by Mike M. — 09.13.05 @ 1:18 pm
I also think (hope!) he’s just carefully answering the questions without painting himself into a corner. Frankly I also believe case law should be respected.
Until it’s overturned!
Comment by Mark La Roi — 09.13.05 @ 1:37 pm
The hysteria over Roe v Wade is because liberals know it is a house of cards and a pitifully weak decision in terms of both structure and the prior cases that it rests upon. In particular, if the “reasoning” in Griswold v Connecticut were to be discarded, Roe would collapse along with it.
It will be interesting to see if the Democrats dare to wander into questioning/orations on the Ninth Amendment.
Comment by Heliotrope — 09.13.05 @ 1:54 pm
Mike/5 writes:
“I think Roberts is now in a position where he feels the need to, more or less, tell the senators what they want to hear as opposed to how he really feels…”
Well, that would be perjury (although, of course, perjury that can’t be proven). That’s a pretty auspicious beginning for his Supreme Court career.
And although I disagree with many of his political positions, I think he has integrity and wouldn’t lie to the committee.
In fact, I suspect that the opposite is true. I suspect that Roberts in 1991 was arguing his client’s position (which is, you know, what lawyers *do*), rather than espousing his personal views back then.
Besides, he’s going to get the Senate approval anyway. It’s not like he *needs* the minority liberal vote. So why placate liberals?
Comment by Kman — 09.13.05 @ 2:02 pm
P.S. Roberts also said today that the constitution protects a “right to privacy”. He also explained why that right is protected. As you know, the right to privacy was the underlying rationale for Roe v. Wade.
So, he believes in stare decisis (the notion that judges are somewhat bound to prior decisions) AND the “right to privacy”.
Doesn’t look like Roe v. Wade is going anywhere yet.
Comment by Kman — 09.13.05 @ 2:06 pm
Sorry to keep butting in. Here’s the Q&A on privacy (Griswald, etc.):
SPECTER: Do you believe today that the right to privacy does exist in the Constitution?
ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways. It’s protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It’s protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise. It protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them.
He says more, too. The New York Times has the transcript (so far)
Comment by Kman — 09.13.05 @ 2:18 pm
Take it easy. As a (conservative) legal professional, I am not in the least bit concerned about what he’s saying. First off, there is a “technical” right to privacy contained in the Fourth and the First. Its the Ninth and Tenth we’re worried about. Those he would not and could not address. He won’t simply because they would indicate his ruling on a particular issue, which he can’t divulge, or risk having to recuse himself. He could put forth his legal theory, but politically, its a bad idea.
Second, what he said about Roe doesn’t really worry me, either. All judicial decisions are entitled to respect. All of them. Doesn’t mean that he won’t overrule them the first chance he gets. In the earlier statment, he is indicating the position of the adminstration for which he worked. In the second one, he’s giving a vague indication of how he treats judicial precedent–very carefully. No one is touching Griswold, its too old–it would be like overturning Brown v. Board of Ed. The SC isn’t completely bound to prior decisions, but they generally follow the tide–its why Griswold gave way to Roe.
The right to privacy is pretty sketchy, but you do have a right to be protected from governmental intrusion into your home w/o a warrant or probable cause. You have a right to privately choose your religion, whether you have a right to kill your unborn child, well, that’s where the sticker comes in (that’s Ninth Amendment jurisprudence, and its complicated, but as he seems to be good friends with Luttig and McConnell, I’d say that he’s probably pretty much on the Rehnquist party line. Frankly, Roberts isn’t stupid. He’s going to not say anything. These quotes pretty much indicate that he isn’t saying anything.
:o)
Comment by E.M. — 09.13.05 @ 3:11 pm
E.M.
If Griswald isn’t going to be touched (and I agree with you), then there is no legal basis for overturning Roe v. Wade. Both cases are based on the same underlying constitutional principle — i.e., the Constitution protects a right to privacy which exists in matters concerning procreation.
It seems to me they must rise or fall together.
Comment by Kman — 09.13.05 @ 3:32 pm
That is true. If Roe goes, the idea of a strict right to privacy would probably take down Griswold, at least implicitly. BUT it depends on the grounds. My thought is that Roe will probably be overturned on a more simplistic idea than a rethinking of the right to privacy–that the fetus is a human being, and therefore entitled to rights, or at least to not be murdered. Its probably more likely that the first abortion case the court takes up will be some modification of Planned Parenthood v. Casey, which will place restrictions on abortion before it does away with the “privilege” altogether.
The danger of revisiting Roe on right to privacy grounds is that it will mess with earlier stuff, and create a funny precedent. Roe is bad law all around–it involves really no legal reasoning, if you read it. Its just a conclusion with a lot of writing trying to justify it. But that doesn’t mean that a Roberts court couldn’t reverse such terrible decisions as Lawrence v. Texas, or take a hard hand on gay marriage.
The Ninth Amendment is really complicated, and interpretations are pretty extreme either way, so you have to chip away at the direction the court has gone since Roe, and try to reverse those cases you don’t like, at least implicitly, with things that don’t address the Ninth, otherwise you risk getting THOSE overturned when (God forbid!) a more liberal court comes into power.
:o)
Comment by E.M. — 09.13.05 @ 4:03 pm
E.M.: I agree with you about Griswold not being overturned. But the court has not (except for Roe) found the privacy right Douglas invented as a compelling test for cases in general.
No one can define privacy, let alone describe its boundaries. Nearly all privacy cases have been on the handling of private/personal records and shielding them for a greater public view.
It would be interesting to image how Douglas would hallucinate on the “emanations of the privacy right” in the internet world of today.
Comment by Heliotrope — 09.13.05 @ 4:23 pm
E.M. writes:
My thought is that Roe will probably be overturned on a more simplistic idea than a rethinking of the right to privacy–that the fetus is a human being, and therefore entitled to rights, or at least to not be murdered.”
That’s certainly a possiblity, but declaring that “a fetus is a human being” is a factual determination, not a legal one. Whether you agree with that “fact” or not, for the Supreme Court to make such a declaration as a matter of law is the very definition of “judicial activism”.
“Roe is bad law all around–it involves really no legal reasoning, if you read it. Its just a conclusion with a lot of writing trying to justify it.”
I respectfully disagree that there is NO legal reasoning. I’ve read it, and there clearly IS legal reasoning. The legal reasoning (whether you agree with it or not) is pretty straightforward, which is why there is so little verbiage devoted to it in the opinion.
I’m not sure how the Ninth Amendment enters into this. It is not the basis for the Supreme’s Court decision in Roe. They approached it from the Fourteenth Amendment.
Helitrope writes:
“No one can define privacy, let alone describe its boundaries.”
Really? I can. Or at least, like pornography, I know it when I see it.
“Nearly all privacy cases have been on the handling of private/personal records and shielding them for a greater public view.”
Well, yes and no. Most privacy cases come before the Supreme Court in the context of criminal investigations (search warrents, etc). But the Constitution is pretty explicit about that aspect of privacy.
Others have dealt with specific privacy statutes, like the Privacy Act of 1974, which don’t relate to constitutional protections of privacy.
Comment by Kman — 09.13.05 @ 4:57 pm
If you’d like to ask Judge Roberts a question…use the feminazi liberal link below
http://democrats.senate.gov/askroberts/
I’m sure the looney women sponsoring the page will love my questions and comments (I couldn’t help myself)
Comment by Renee — 09.13.05 @ 5:01 pm
Kman, the privacy rights implied in the 4th, 5th, 7th and 8th amendments have had a few landmark cases, but there have only been a handful of these cases that have been accepted by the SCOTUS.
Records privacy cases have flooded the court. The court has not been able to design a landmark decision that would guide the appellate courts on records privacy simply because records privacy is so nuanced. i.e. Do you want your employer to do a complete DNA test on you to learn your potential weaknesses? That is not covered by the Bill of Rights. But it probably fits your “I know privacy when I see it” concept. Well, the flasher on the kindergarten playground thinks he does too.
You will need to explain what you call constitutional protections of privacy. Please skip over what you find implied and go straight to the actual wording.
Just out of curiosity, will a human fetus become anything but a human being? You probably mean “personhood” since the key word in the 14th amendment is “person.” Could we move personhood to age 18 months and call the time between birth and 18 months the “post fetal/pre-personhood” period? Then we could stop getting rough on mothers who toss their babies in the Dumpster.
It is a canard to say that every landmark finding is judicial activism. The left is pulling this semantic voodoo because they have to have legislating from the bench (true judicial activism) to carry out their agenda. They sure haven’t been able to do it by selling it to the public and getting elected to do it.
Comment by Heliotrope — 09.13.05 @ 5:24 pm
I’ve been imagining…
watching some of the looney hypocrites really lose their mind (and show their true hypocracy) if Bush were to nominate Janice Rogers Brown or Priscilla Owen to fill O’Connor’s seat on the court…
they wanted a minority or a woman or both and isn’t it nice to know, he has two he can give them
Comment by Renee — 09.13.05 @ 8:28 pm
18 Renee: If he doesn’t, I know I can get Laura Bush to hold him while I smack his big head.
I am so ready for a no nonsense black woman to straighten out that court……………..
Comment by Heliotrope — 09.13.05 @ 8:33 pm
La Shawn Barber also comments on Roberts’ answers regarding abortion.
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Heliotrope:
“That is not covered by the Bill of Rights”
“You will need to explain what you call constitutional protections of privacy. Please skip over what you find implied and go straight to the actual wording.”
Why are you making me rely exclusively on actual wording? What makes you think the Bill of Rights is inclusive of ALL our rights?
The Constitution does not enumerate all of our rights, including (as the Declaration of Independece suggests) many “self-evident” ones. In fact, the Constitution specifically admits that it does not enumerate all of our rights.
Just out of curiosity, will a human fetus become anything but a human being? You probably mean “personhood†since the key word in the 14th amendment is “person.†Could we move personhood to age 18 months and call the time between birth and 18 months the “post fetal/pre-personhood†period?”
Or we could go the other way, and call every sperm a “human being” or “person”. Maybe we can get them qualified as “dependents” and get huge tax deductions (sorry, ladies).
I’m being facetious (as I hope you are), but there is a larger issue: where one draws the line on “personhood” is entirely subjective. There’s no “correct” answer, only differences of opinion.
But even more importantly, the answer (whatever it is) draws upon moral, ethical and religious beliefs. And it is not the role of a nanny government (either through the legislature or the judiciary) to tell you the “correct” answer.
Comment by Kman — 09.13.05 @ 11:19 pm
The story of Tuesday’s Senate confirmation hearings of John Roberts is that Roberts “dodged” Senators’ attempts to pin down his views on abortion. Roberts did say, however, that Roe v. Wade is “entitled to respect under principles of stare decisis.” (Hat tip: La Shawn Barber.)
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La Shawn Barber is underwhelmed by Roberts’ words on Roe then and now.
Pingback by Sierra Faith — 09.14.05 @ 4:01 am
Correct me if I am wrong- And I’m sure someone will Werther I am or not- but Roe Vs. Wade was about right to privacy. What is needed is legislation from Congress, not the courts, that makes killing unborn babies illegal. Legislation should not come from the bench. We have got to hold the Congress responsible for writing our laws and hold the courts responsible for settling the legality of those passed- not changing them.
Comment by Chris — 09.14.05 @ 1:07 pm
Roberts seems to be saying, in many different ways, that he will INTERPRET rather than MAKE law. This is the key element in a good judge, and something being missed by liberals (and more than a few conservatives). Roberts’ personal position on Roe is irrelevant, despite the desperate attempts by the lefties on the Senate committee to make it the central issue here. If he follows through with his promise, he will decide any cases involving abortion strictly on the basis of law and the Constitution. We could ask for nothing better.
As a side note, the most enjoyable part of yesterday’s committee session was watching Roberts turn Joe Biden (D-Plagiarism) into a babbling idiot.
Comment by RedBeard — 09.14.05 @ 1:20 pm
Chris:
You asked for someone to correct you if you are wrong, so here I am!
If Congress passed a law saying it was illegal to kill unborn babies, the law would probably be ruled unconstitutional in a heartbeat. Not because of privacy or anything like that, but because such a law would be outside the scope of Congress’s limited federal powers. In a word, federalism.
States, on the other hand, have the power to enact such a law. And that’s what Texas did many many years. And that’s what led to the Roe v. Wade case (”Wade” was the District Attorney of Dallas County, attempting to enforce the abortion ban). And you know what happened there.
Anyway, the thing to remember is that neither Congress, nor the states, can pass laws that violate constitional protections (that’s a bit of an overgeneralization, but that’s the “default” rule).
So, unless the Supreme Court rules there is no right to privacy when it comes to abortions, then the only “legislative” way to change the landscape is by constitutional amendment. Congress cannot be the answer here.
Comment by Kman — 09.14.05 @ 3:37 pm
Roberts has said in his Senate testimony that Congress can correct the courts on the eminent domain mess. If that’s the case, then he seems to be indicating that Roe v. Wade is not a commandment from on high, as the left wants it to be, but is a reversible decision.
Apparently Roberts has a good grasp of what the Founders intended, and does not think the courts, in their infinite wisdom, are superior to the other branches of government. Good for him.
Comment by RedBeard — 09.14.05 @ 5:39 pm
The basis for leaving Griswold alive and well, but overturning Roe V. Wade is in differing facts of a new case, specifically, in that Griswold extends a right to privacy to MARRIED COUPLES to make reproductive decisions, while Roe V. Wade simply ignores the issue of marriage.
In short: When marriage stopped being part of the reproductive process, then MEN’s RIGHTS began to be violated. A new case, one asserting 14th Amendment rights by a FATHER in an abortion case could provide all the necessary legal requirements for, if not overturning Roe, at least reducing it’s scope.
And for a Judge who is concerned about avoiding legal upset, a scaling back of Roe is more desirable than an elimination of it.
Comment by John Stevens — 09.14.05 @ 5:55 pm
You have to go beyond Wikipedia to understand Griswold and Roe.
The 14th amendment lay dormant until the 1920’s when the SCOTUS decided that a corporation is a person and must be afforded the protections of the 14th amendment.
The SCOTUS could just as easily decide that the rights of a person begins at…..how, about the third trimester? That would be in keeping with the “science” the SCOTUS invented in Roe.
There are some compelling reasons to reach this conclusion. It could allow the courts to protect the fetus from substance abuse or increase the penalty for murder (Laci Peterson) and other issues that would protect the baby about to be born.
Many cultures in the world mark birthdays from the approximate date of conception. We have the tradition of marking a birthday at the emerging from the womb date. This is not science; it is custom. Customs can be changed or even ignored in law.
Congress can certainly pass a law outlawing abortion. State laws must comply with the acts of Congress. States can have stricter laws, but not more lenient laws than Congress mandates.
So far as the “enumerated rights” are concerned, the Bill of Rights is a list of issues that inform the Congress of general rights held by the states and the people that Congress may not abridge.
However, there is a nasty fly in the ointment of the Bill of Rights: the ninth and tenth amendments. When you connect the ninth and tenth amendments you learn that the just because a number of prohibitions against the power of the Federal government are listed in the Bill of Rights, no one should consider the list conclusive. Unmentioned rights remain with the people.
If the SCOTUS were to dip into this Pandora’s Box to see what unenumerated rights they could find, it would be carte blanche for an activist SCOTUS to loot the Constitution of its meaning and to usurp the power of “we the people” who give the government, including giving the SCOTUS its power.
For that reason. the SCOTUS has assiduously avoided opening the ninth and tenth amendments as the basis of their opinions.
The damage (my word) done by Griswold is that Justice Douglas put on his swami hat and found “rights” emanating from the penumbra of parts of the Bill of Rights. This is as close as the SCOTUS has come to cracking open the ninth and tenth amendments.
Well, Douglas is dead and he failed to leave a clear guide to the penumbra he was reading through his tinfoil hat.
The entire “right to choose” is based on a perversion of the finding in Griswold which has popularly taken on the misapplied notion that the case established a “right to privacy.” Liberals have parlayed the supposed “right to privacy” to mean that a woman can privately choose whether to continue a pregnancy or not.
Remember Dred Scott? The SCOTUS said a slave is property and therefore……… Well, as it stands now, the fetus is property and if you want to kill it, go right ahead.
What goes around, comes around.
Comment by Heliotrope — 09.14.05 @ 9:06 pm
Heliotrope:
Just so we’re clear, I’m an attorney who lectures (occasionally) on constitutional law. Not that I don’t make mistakes, but believe me — I don’t get my information from Wikipedia.
First of all, 14th Amendment jurisprudence began shortly after the 14th Amendment was ratified. The 14th Amendment was directly applied to the issue of privacy in the 1920’s (although it was implicitly applied in far earlier cases).
Anyway, you state that SCOTUS “could easily decide that the rights of a person begins at . . . about the third trimester”. Certainly, it could, and there are arguably some societal advantages SCOTUS to do so (you mention a few). But SCOTUS (as conservatives point out) are not supposed to engage in social experimentation; they should follow the law. So what is the legal rationale for that?
Let me dispel something else you wrote, i.e., that the Roe court created a “science” suggesting that life begins in the third trimester. The Roe Court did no such thing. They specifically said that when life begins is more of a philosophical and religious matter, and they weren’t going to touch that with a ten-foot pole.
Instrad, they relied on science (sound science) for the conclusion that, at the third trimester, a fetus is capable of self-sustained life (i.e., life outside the womb), and therefore, states — if they wanted — have a compelling interest in preserving that potential life.
You also argue that Congress can pass a law outlawing abortion. Under what congressional power? The Commerce Clause?
Finally, the Ninth Amendment. You may not know this, but the reason it was put there in the first place was so that future generations (i.e., us) wouldn’t get the idea that our rights are limited to ONLY those SPECIFICALLY enumerated in the Constitution.
That said, your fears about SCOTUS “finding” unenumerated rights are unfounded and frankly, paranoid. Contrary to what you suggest, rights are not pulled from the judicary’s butt. That’s the kind of argument I hear from someone who has never read a court opinion.
If you read Griswald (which, by the way, wasn’t the first SCOTUS case to recognize privacy as a fundamental right), you see that SCOTUS provided a rich explanation of the importance of privacy to the Framers, and throughout American history. In fact, you get that from reading the Roe v. Wade decision. You may disagree with the reasoning, but to argue that judges just make stuff up is the intellectual equivalent of yelling “liar, liar” in a debate.
Comment by Kman — 09.15.05 @ 4:46 pm
Another Sort of Confirmation Hearing
Listening to Fr. Frank Pavone’s homily on EWTN’s daily Mass today, my mind wandered to the Roberts confirmation hearing. Well, not to Roberts’s, but to another Supreme Court nonimee’s: a nominee whose public statements on Roe …
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