How did John Roberts do at his hearing to be the next Chief
Justice of the Supreme Court? Before the hearing, I laid out five
subject areas of most importance to the liberties of gay Americans.
Based on his replies, Roberts did well in four of the five areas.
On the fifth, he was forgivably silent.
Let's review the five areas:
1. Does Roberts believe there is a
constitutional right to privacy? If so, what would be his
methodology in deciding whether a particular activity fell within
the protection of this right?
Relying on two-decade old memos that Roberts had written as a
young lawyer in the Justice Department, gay groups opposing Roberts
before his hearing had cast doubt on whether he supported a
constitutional right to privacy. The right to privacy was a basis
for the Court's 2003 decision in Lawrence v. Texas
striking down state sodomy laws.
"I think there is a right to privacy protected as part of the
liberty guarantee in the due process clause," Roberts testified.
This statement is especially significant because many conservatives
have criticized judicial decisions protecting, under the word
"liberty," fundamental rights not specifically found in the text of
the Constitution. Roberts elaborated by saying that the right to
privacy extends to both married and unmarried people.
Perhaps even more importantly, Roberts distanced himself from
some judicial conservatives who advocate strict adherence to the
specific, original intentions of the Framers. Words like "liberty"
and "due process," he argued, are so broad that they seem designed
"to apply in a meaningful way down through the ages." Robert Bork
must have choked on his martini olive when he heard that.
While Roberts declined to say specifically whether he supported
the result in Lawrence, that demurral was expected. The
modern conventions of the judicial-appointments process call on
judicial nominees to avoid commenting directly on recent or
controversial cases or issues that might come before the Court. I
think this convention is questionable, but throughout the hearing
Roberts was well within the practice of his recent predecessors,
including President Clinton's nominees.
2. Does he believe Congress has the
constitutional power to enact civil-rights laws that forbid private
discrimination?
Before the hearing, gay groups had suggested that Roberts might
have a very narrow view of federal power that would prevent
Congress from banning things like private employment discrimination
against gays.
While Roberts understandably declined to answer whether the
proposed Employment Non-Discrimination Act (barring anti-gay job
discrimination) would be constitutional, he did say that a federal
statute barring race and sex discrimination in employment was
constitutional under Congress's power to regulate commerce. For
purposes of commerce regulation, there's no reason to distinguish
banning race and sex discrimination from banning sexual-orientation
discrimination.
3. Does he believe Congress has the
constitutional power to strip the federal courts of all
jurisdiction to decide particular issues?
Relying on the same old memos, gay critics before the hearing
feared that a Justice Roberts would vote to let Congress forbid
federal courts even to hear gay-marriage cases or other claims.
Again, Roberts declined to answer specifically whether Congress has
such power, citing the fact that these are live matters of
controversy in Congress. But he made it plain that he believes such
measures are a bad idea because they prevent the Court from
ensuring uniformity in the law through its decisions.
4. Does he think a state may forevermore strip
a single group of all civil-rights protections?
Gay critics had suggested Roberts might disagree with the 1996
decision in Romer v. Evans, in which the Court struck down
a Colorado state constitutional amendment stripping homosexuals of
all civil-rights protections.
Because Romer is so recent and controversial, Roberts
refused to answer whether he supported it. Given the practice of
recent judicial nominees, there was nothing untoward about that.
Unfortunately, none of the Senators probed the larger question
about the constitutionality of the type of laws at issue in
Rome. This senatorial negligence can't be held against
Roberts.
I must acknowledge, though, that we can't take much comfort in
Roberts's pro bono work for the gay side inRomer.
He made a point of saying that he was just doing his job as a
lawyer in the case and that he might have worked for the anti-gay
side had they reached him first.
5. When, if ever, does he think the Court
should adhere to a decision that he believes was wrongly
decided?
On the question of stare decisis, Roberts was effusive
in his strong defense of stability and continuity in the law. He
was so adamant about this, in fact, that many legal scholars came
away convinced that he would not even vote to overrule Roe v.
Wade, the abortion decision that gay groups like HRC seem most
anxious to preserve.
Roberts's respect for precedent bodes well for keeping
Romer and Lawrence, even if Roberts disagrees
with them. If anything, his promotion to Chief Justice will likely
make him even more cautious about radical doctrinal changes that
might undermine public respect for the Supreme Court.
About the only thing he got plainly wrong was his praise of
"Doctor Zhivago," a dreary bore of a movie.
We can't know for sure what he'll do when he's on the bench. He
may thoroughly disappoint us. Overall, however, we're entitled to a
sigh of relief. "He is not in the mold of Scalia and Thomas," said
one prominent conservative legal theorist, with evident
disappointment. If Roberts had been defeated, as prominent national
gay groups advocated, we could have done much worse.