Roberts and Roe

Larison on the Chief Justice:

I don’t think that John Roberts sat before the Judiciary Committee and perjured himself when he said that he thought that Roe was the “settled law of the land” and then went on to say, “There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” To expect that Roberts is a reliable anti-Roe vote is ultimately to believe him to be a liar, in which case it is not clear why anyone would trust him one way or the other.



I don’t believe that John Roberts is a liar either, but I don’t think his comments – delivered when he was being confirmed to the federal appeals court, not the Supreme Court – in any way preclude his voting to overturn Roe now that he's on the high court. (This is one of those rare occasions when I find myself agreeing with Media Matters.) A federal judge can’t overturn a precedent without more or less guaranteeing that he'll be reversed on appeal, so there’s no reason not to promise to faithfully apply it; a Supreme Court Justice, by contrast, can change long-settled law if he deems it necessary. And Roberts was very circumspect in his confirmation hearings about his opinion of Roe and Casey, going no further than the anodyne statement that Roe is “settled as a precedent of the court.”

The widespread confidence that Roberts will be content to chip away at Roe appears to be based, variously, on his confirmation-hearing comments, on amateur psychologizing about his moderate temperament, and on the assumption that no GOP President would risk his party's fortunes by actually appointing more than a handful of anti-Roe judges to the Supreme Court. My own confidence that he would overturn Roe - or at least revise it beyond recognition - is based on amateur psychologizing as well, in a sense, but I think I have a fair amount of evidence on my side.

At the risk of over-generalizing, I would venture that there are three crucial factors in predicting whether a male Supreme Court Justice would vote to overturn Roe: His judicial philosophy, his religious tradition and how seriously he takes it, and (perhaps most crucially) what his wife thinks about abortion. In Roberts, we have a man who is 1) a judicial conservative, of the sort that would be inclined to treat the penumbras and emanations that create the abortion license with a certain skepticism no matter what; 2) a Roman Catholic who chooses to attend one of the more conservative parishes in the Washington D.C. area; 3) the husband of a similarly-devout Roman Catholic, who serves as legal counsel for Feminists for Life (!); and 4) the father of two adopted children. (The relevance of that last point to a person's sentiments about the abortion debate should not be underestimated.) None of this makes him a certain vote against the Roe-Casey regime, but so far as prognostication goes it's hard to imagine stronger evidence - save a direct statement on the matter - in favor of counting him as such.