Supreme Court nominee John Roberts endorsed a constitutional right to privacy Tuesday, but he stopped short of endorsing Supreme Court precedents upholding abortion rights.
Senate Judiciary Committee Chairman Arlen Specter (R-PA) opened the confirmation hearing by describing abortion as "the central issue" for many Americans. And throughout the day, Democrats and Republicans alike probed for hints that Roberts might vote to overrule either of the court's key abortion-rights rulings: Roe v. Wade, the 1973 decision that first established constitutional protection for abortions, or Planned Parenthood v. Casey, the 1992 decision that largely reaffirmed Roe but softened its test for laws regulating abortion procedures.
About the Author
Kenneth Jost, Supreme Court editor for CQ Press and contributing editor of CQ Weekly, has covered legal affairs as a reporter, editor and columnist since 1970.
Roberts repeatedly called the Casey decision a "precedent entitled to respect," but he resisted persistent efforts by Democrats to go further. Republican senators said they were satisfied with the noncommittal stance.
In the second day of an expected weeklong confirmation hearing, Roberts withstood eight hours of questions from 16 of the committee's 18 members in generally good spirits. He raised his voice only a few times — when Democrats pressed him on memos written while working as a lawyer in the Reagan administration in the 1980s. Nominated to be the 17th chief justice of the United States, Roberts summarized Supreme Court decisions nearly flawlessly while also declining to give his personal opinion of most of the more recent cases.
Supporters praised his performance. "Judge Roberts did a very good job today," said Leonard Leo, executive director of the Federalist Society, who has played a key role in promoting Roberts among conservative groups. Liberal interest groups were more critical. Ralph Neas, president of People for the American Way, which opposes the nomination, said Roberts had been "totally evasive" on the stand.
A Right to Privacy
Roberts repeatedly expressed his view that Americans have a right to privacy. He indicated that he agrees with Supreme Court precedents dating from the 1920s that recognize a right to privacy even though the phrase is not found in the Constitution. And he specifically agreed with the result in a landmark 1965 decision, Griswold v. Connecticut. The decision struck down a law banning the use of contraception by married couples and later formed a basis for the Roe v. Wade decision.
"The right to privacy is protected in the Constitution in various ways," Roberts said. Summarizing Supreme Court decisions over the past 80 years, Roberts said they recognize that "personal privacy is a component of liberty protected under the Due Process Clause."
So as to leave no doubt, when Sen. Dianne Feinstein (D-CA) described privacy as an "implied" right under the Constitution, Roberts signaled a stronger view. "I do not regard it necessarily as an implied right," Roberts said.
The privacy issue had been one of the major lines of criticism by groups opposing President Bush's nomination of Roberts as chief justice. After Roberts' testimony on Tuesday, one of the Democratic senators who had been most critical of Roberts — New York's Charles Schumer — said he was "pleasantly surprised" by his answers.
But the issue may not go away entirely. Roberts declined to answer Feinstein's question on how to apply the right to "beginning of life" or "end of life" decisions, saying those were issues "that are coming before the Court in both respects."
A Question of Precedent
Roberts was also less than clear-cut in answering questions about the Supreme Court's abortion rights precedents. He repeatedly acknowledged the importance of respecting past rulings — the legal doctrine known by the Latin phrase stare decisis — without directly answering whether he might vote to overrule either abortion decision.
After noting that Casey had "reaffirmed" Roe's "central holding," Roberts said the ruling "is a precedent of the court that is entitled to respect under the principles of stare decisis."
While acknowledging that precedents are sometimes overturned, Roberts added, "It is a jolt to the legal system to overrule a precedent."
But to Democratic senators, Roberts refused to go further. And he agreed with Republican senators who suggested he had made no commitment one way or another. "I tried as scrupulously as possible to avoid making any commitment about any case that may come before the court," he said.
A Question of Faith
Specter used the abortion issue to touch gingerly on the issue of religion by asking Roberts, a practicing Roman Catholic, whether "your faith" would affect opinions on the bench.
"There is nothing in my personal view based on faith or other sources that would prevent me from applying the precedents of the court faithfully in accord with the principles of stare decisis," Roberts said.
Roberts was later more emphatic in denying any role for religion in deciding cases. "My faith and my religious beliefs do not play a role in my judging," Roberts said. "I look to the law," he continued. "I do not look to the Bible or other religious books."
Torture and Civil Rights
The committee's ranking Democrat, Patrick Leahy of Vermont, focused his opening questions on a recent Bush administration memo claiming the president's power to authorize use of torture if national security required. Roberts distanced himself from the policy.
"I believe that no one is above the law under our system, and that includes the president," Roberts said. "The president is fully bound by the law."
Roberts also distanced himself from a passage in a book by Rehnquist suggesting a relaxed attitude toward civil liberties during wartime. "The Bill of Rights remains the same," Roberts said. "The obligation of the court to protect those liberties in time of peace, in time of war, in times of stress, in time of calm" is not changed.
In subsequent questioning by Sen. Edward M. Kennedy (D-MA), Roberts avoided any criticism of civil rights legislation passed by Congress in the 1980s, but he defended his role in the Reagan administration in arguing for narrower measures. "It was my job to articulate the views of the administration," he said.
Roberts also spoke out strongly against gender discrimination while minimizing the significance of an earlier memo referring to the issue as a "perceived problem."
"Of course, gender discrimination is a particular problem," Roberts told Sen. Joseph Biden (D-DE). "It's a particular concern of mine and always has been."
After noting that his three sisters and his wife all work "outside the home," Roberts added: "I have a young daughter who I hope will have all the opportunities open to her without regard to gender discrimination."
International Law at Issue
Roberts took the conservative side in an ongoing debate among the justices — and between opposing interest groups — on the use of foreign and international law in interpreting provisions of the U.S. Constitution. Justice Antonin Scalia has strongly criticized the practice, which a majority of justices have endorsed in recent decisions that prohibited executing juveniles and struck down laws banning gay sex.
Roberts cited "a couple of things that give me concern" about the practice. First, he said, as "a matter of democratic theory," it is questionable to rely on a decision by a foreign judge because "no president accountable to the people appointed that judge, no Senate accountable to the people confirmed that judge."
Second, Roberts said, looking to foreign law "expands the discretion" of a judge. "Relying on foreign precedents doesn't confine judges," Roberts said. "[In] foreign law, you can find anything you want."
Pressing The Commerce Clause and Court TV
Senators on both sides of the aisle pressed Roberts for his view of Rehnquist Court decisions limiting Congress's powers over interstate commerce. In two decisions authored by Rehnquist, the court struck down a law banning guns near schools and a separate statute allowing victims of "gender-motivated violence" to sue their assailants in federal courts.
Schumer pressed Roberts to endorse an earlier court decision, Wickard v. Filburn (1942), that took a broader view of Congress's commerce powers. Roberts declined, noting that the validity of the decision had been argued during the court's recent term in a case involving California's medical marijuana law. But he also said later Rehnquist Court decisions had been more deferential to Congress's powers.
On other issues, Roberts said he had "no settled view" on televising Supreme Court proceedings, but he acknowledged that some of the justices have "particular views" on the subject. Several justices are strongly opposed to allowing cameras in the court.
At The End of the Day
Roberts also showed traces of humor at times. When asked how he would like to be remembered by history, he said, "I would like for them to start by saying, 'He was confirmed.'" He then added, "I would like to be remembered as a good judge."
Roberts resisted ideological labels, saying he prefers to be known as "a modest judge." Specifically asked whether he would be in the mold of Rehnquist, Roberts said: "I will be my own man. I hesitate to be put in anyone's mold."