Updated Sept. 13, 6:15 p.m. EDT
WASHINGTON (BP)–Chief Justice nominee John Roberts gave something for both sides of the abortion debate to mull over Sept. 13, saying that while overturning Supreme Court precedent is a “jolt to the legal system,” there are instances in the nation’s history when it was necessary.
On the second day of the Senate Judiciary Committee’s confirmation hearings, Roberts refused to discuss specifically the infamous Roe v. Wade case that legalized abortion, although he was asked repeatedly and did talk about his views on precedent — the legal principle that previous decisions guide a court’s future rulings.
Most social conservative leaders have supported Roberts’ nomination and hope that, if confirmed, he will vote to overturn Roe. Several liberal interest groups oppose Roberts out of the fear he will reverse it.
“I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts, who would be the nation’s 17th chief justice and replace the late William H. Rehnquist, said. “It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided.”
Judiciary Chairman Arlen Specter, R.-Pa., used most of his allotted time asking Roberts about Supreme Court abortion cases and Roberts’ view of “stare decisis” — the legal doctrine that a court should not overturn its own decision unless there is a strong reason to do so. Specter is pro-choice.
Roberts — currently serving as a judge on the U.S. District Court of Appeals for the D.C. Circuit — said several factors should be considered when deciding whether to overturn a court’s own decision. Among, them, he said, is whether a precedent has been “proven to be unworkable” and whether the “basis of the precedent” has “been eroded.”
“[But] the principles of stare decisis recognize that there are situations when that’s a price that has to be paid,” Roberts said of the negative impact on overturning previously rulings. “Obviously, Brown vs. Board of Education is a leading example, overruling Plessy vs. Ferguson.”
Brown ended legal racial segregation in the U.S.
Roberts served in the Reagan and first Bush administrations, and as deputy solicitor general under Bush argued for the overturning of Roe in a legal brief. Roberts told senators that the brief was the “position of the administration.”
“I was promoting the views for the people for whom I worked,” Roberts said. “In some instances, those are consistent with personal views, and in other instances they may not be.”
Each of the committee’s 18 members gets 30 minutes in the first round of questioning and 20 minutes in the second round. The hearings are tentatively scheduled to conclude Friday, when outside witnesses will testify.
Roberts said discussing the Roe v. Wade case could hinder his impartiality when the court considers future abortion cases. One such case, concerning parental notification, is on the court’s docket for the next term, which begins Oct. 3.
Specter argued that Roe goes beyond simply being a precedent and is instead a “super precedent” that the court should think twice about overturning. At one point he pointed to a giant chart, which listed 38 Roe-related cases from the past three decades.
“[W]ouldn’t you think Roe would be a super-duper precedent in light of 38 occasions to overrule it?” Specter asked to laughter.
Roberts did not answer the question but simply noted that in the Supreme Court’s 1992 Planned Parenthood v. Casey decision — which affirmed Roe — the doctrine of stare decisis was applied.
“And that, I think, is the decision that any judge in this area would begin with,” he said of the 1992 decision.
The Planned Parenthood case, he said, is a “precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.”
Roberts also was asked whether he agreed with the 1965 Griswold v. Connecticut case, in which the court struck down a state ban on contraceptives on the basis of a constitutional right to privacy. The rights established by Griswold late were applied in Roe v. Wade. Roberts said he agreed with the “conclusion” in the Griswold case but implied he disagreed with its reasoning.
In one of the day’s most interesting exchanges, Sen. Lindsey Graham, R.-S.C., asked Roberts whether he would be a judge “in the mold of” Rehnquist. Roberts served as a clerk under Rehnquist in the early 1980s.
“I admire the late chief justice very much, but I will have to insist that I will be my own man, and I hesitate to be put in anybody’s mold,” Roberts said. “And I will certainly approach cases according to the judicial philosophy that I have developed over the years. In many respects, it’s similar to his, in its recognition … of the limited role that judges should have …”
Graham then asked Roberts whether people should expect a “dramatic departure” from the “Rehnquist era.”
“Given my view of the role of a judge, which focuses on the appropriate modesty and humility, the notion of dramatic departure is not one that I would hold out much hope for,” Roberts answered.
Several senators asked Roberts about his judicial philosophy. Sen. Orrin Hatch, R.-Utah, read a list of terms — among them “originalist” and “minimalist” — and then asked: “Which of those categories do you fit in?”
“Like most people, I resist the labels,” Roberts answered. “I have told people, when pressed, that I prefer to be known as a modest judge. And to me, that means some of the things that you talked about with those other labels. It means an appreciation of the role of a judge is limited, that judges are to decide the cases before them. They’re not to legislate. They’re not to execute the laws. Another part of that humility has to do with respect for precedent that forms part of the rule of law that the judge is obligated to apply under principles of stare decisis.”
Roberts later added: “I don’t think the courts should have a dominant role in society in addressing society’s problems. It is their job to say what the law is.”
Hatch also asked Roberts whether overturning congressional laws should be labeled “judicial activism.” Hatch was referring to arguments made by some Democrats who have called conservative judges activists for striking down laws.
“If the court strikes down an act of Congress, and it’s wrong — the court shouldn’t have done that — that’s not an act of judicial activism,” Roberts said. “It’s just being wrong.”
Later, Roberts called the 1857 Dred Scott v. Sanford case — which ruled that blacks had no rights under the Constitution — one of most “egregious examples of judicial activism” in the nation’s history.
Generally, conservatives use the term “judicial activism” when referring to matters of constitutional interpretation, such as basing Roe v. Wade on the Constitution’s right to privacy.
In comments certain to draw praise from conservatives, Roberts said he disagrees with using foreign law as precedent in Supreme Court rulings. Some Supreme Court decisions in recent years have cited foreign law.
“It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they’re finding precedent in foreign law, and [then] use that to determine the meaning of the Constitution,” Roberts said. “And I think that’s a misuse of precedent.”
Roberts said he disagrees with the use of foreign law also because foreign judges are not accountable to the American people. Foreign law, he said, “doesn’t confine judges.”
“[With] foreign law, you can find anything you want,” he said. “If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somali or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there.”
Specter asked Roberts about his pro bono work on behalf of homosexual legal groups in Romer v. Evans, the 1996 decision that overturned a Colorado law that had prevented the state from giving civil rights status to homosexuality.
“I was asked frequently by other partners to help out — particularly in my area of expertise … and I never turned down a request,” Roberts said. “… [I]f there had been something morally objectionable I suppose I would have [not done it]. But it was my view that lawyers don’t stand in the shoes of their clients, and that good lawyers can give advice and argue any side of a case.”
On the issue of religion, Roberts said, “My faith and my religions beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don’t look to the Bible or any other religious source.”
Sen. Dianne Feinstein, D.-Calif., asked Roberts if he believed in a “separation of church and state” that is “absolute.”
“I don’t know what you mean by absolute separation of church and state,” Roberts responded.
But Roberts did give his thoughts on the history of the First Amendment’s religious protection clauses.
“Many of [framers] or their immediate ancestors were fleeing religious persecution,” he said. “They were fleeing established churches. And it makes perfect sense to put those two provisions together — no established religion and guaranteeing free exercise.”