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By AndrewHyman Comments () / Email this page » / Leave a comment »

Earlier today, I posted some reactions to the first portion of the Roberts question-and-answer session. Now, I’d like to post some further reactions, to the second portion, which went to the end of Senator Kohl’s questions.

Repeatedly, Judge Roberts said things like this: “if you think that the decision was correctly decided or wrongly decided, that doesn’t answer the question of whether or not it should be revisited.� This is the exact antithesis of judicial modesty and humility, and is instead a blank check that allows judges to write activist decisions without fear of later being overturned by their modest and restrained successors. It is a recipe for perpetuating judicial mistakes, and undermining constitutional government. Yes, judges should be bound down by precedents, but only precedents that they are convinced may have been decided correctly. Here is Justice Scalia’s very accurate view on this issue:

I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible ... I agree with Justice Douglas: "A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949). Or as the Court itself has said: "[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions." Smith v. Allwright, 321 U.S. 649, 665 (1944).

The oath is to the Constitution, and not to the precedents! In other testimony today, Judge Roberts squarely endorsed the doctrine of substantive due process, which is a doctrine that has been rejected by justices like Scalia and Thomas. Roberts incorrectly said that “every member of the court subscribes to that proposition,� but the reality is quite different: “If I thought that ’substantive due process’ were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation.� United States v. Carlton, 512 U.S. 26, 39-40 (1994) (Scalia, J., concurring in the judgment, joined by Thomas, J.).

It was not so long ago that the entire Court roundly rejected that bogus doctrine of substantive due process, in the 1963 case of Ferguson v. Skrupa: “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.� Judge Roberts, while declaring humility and modesty and restraint, argues against what the Court tried to do in Ferguson v. Skrupa.

According to Judge Roberts, anyone who agrees with the Court’s 1954 decision in Bolling v. Sharpe must subscribe to the doctrine of substantive due process, just like he does. In that Bolling case, the Court banned segregation of schools in Washington D.C. on the basis of the Due Process Clause, because the Equal Protection Clause only applied against the states. However, Judge Michael McConnell has written correctly that the Bolling case should not have been based on substantive due process; instead, McConnell has pointed out, Congress never "required that the schools of the District of Columbia be segregated." So, Judge Roberts is incorrect about Bolling, incorrect about Ferguson, incorrect about substantive due process, and incorrect about the need to follow decisions that he is convinced were wrongly decided.

Which brings us to the right to privacy. Almost everyone (including me) agrees that the Constitution protects privacy in various specific ways, in the Fourth, Third, and First Amendments, for example. But Judge Roberts says there’s also a general right to privacy in the substantive due process protections of the 14th Amendment. Roberts says, “The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause. That is the approach that the court has taken in subsequent cases, rather than in the ... emanations that were discussed in Justice Douglas’ opinion.� So, Roberts says, "I agree with the Griswold Court’s conclusion….� Here is Senator Kohl’s very accurate response:

Well, I’m delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you’ve essentially accepted — scholars have said this — essentially accepted the basis for the court’s reasoning and decision on Roe, that a woman has a constitutionally protected right to choose. These scholars reason that it follows logically that, if a woman’s right to privacy and her control of her body includes the right to contraception, that it also includes a woman’s right to choose to terminate her pregnancy. I am not sure whether you wish to comment on that. I just wanted to point out to you something that I’m sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe.

I anticipate that Judge Roberts may well uphold decisions of state legislatures banning partial birth abortion. Then a different abortion technique will be used, and again Moms and Dads will have the so-called right to abort their little unwanted burdens all the way up until viability, even though 72% of women in the United States have consistently said that abortion should generally be illegal months before viability.

Since I’m probably not going to be an enthusiastic Roberts booster, I’ll check with the webmaster to see about charting a different course for myself. And thanks so much to the Gang of 14.