Once again, just too conservative

ERWIN CHEMERINSKY is a professor at Duke Law School.

AFTER SPENDING the last month reading countless briefs and memos written by John G. Roberts Jr., it is clear that he would very likely change the law dramatically in key areas such as privacy rights, separation of church and state and racial justice. Democrats need to oppose Roberts for the same reasons they fought against Clement F. Haynsworth Jr. in 1969, Harold Carswell in 1970, Robert Bork in 1987 and Clarence Thomas in 1991.

The parallels to the fight over Bork are striking.

Bork was nominated to replace Lewis F. Powell Jr., who had been the high court’s swing vote on such key issues as abortion, religion and affirmative action. Bork’s record demonstrated that he was a sure vote to change the law in these areas and others. Contrary to revisionist accounts, Bork was not defeated because of a smear campaign. The Senate rejected Bork by the largest margin in U.S. history because he believed there was no constitutional protection for privacy, and he had a very narrow view of the scope of equal protection and the 1st Amendment.

After Bork’s nomination was rejected, President Reagan appointed Anthony M. Kennedy to the court. Although Kennedy has been a solid conservative, he also was the fifth vote to reaffirm Roe vs. Wade and to bar prayers in public schools. He wrote opinions striking down a Texas statute prohibiting private consensual homosexual activity and holding it unconstitutional to execute a person for a crime committed as a juvenile. There is no doubt that denying Bork a seat on the Supreme Court has made a decisive difference in countless cases.


Since Powell’s resignation, Sandra Day O’Connor has been the fifth vote in such crucial areas as upholding the right to abortion, limiting campaign contributions, protecting the separation of church and state and permitting universities to engage in affirmative action. Democrats need to oppose any nominee who would bring about significant changes in these areas.

Everything known about Roberts suggests he would join with the most conservative justices to change the law in a conservative direction. As deputy U.S. solicitor general, Roberts coauthored briefs expressly urging the court to overrule Roe vs. Wade. As an attorney in the Justice Department, Roberts drafted an article arguing that there is no constitutional protection for privacy.

Similarly, Roberts coauthored briefs urging the high court to adopt the radical view that the Establishment Clause of the 1st Amendment is violated only if the government coerces religious participation. Under this view, government aid could be used for religious indoctrination in parochial schools, sectarian prayer would be allowed in public schools as long as it was “voluntary,” and there would be no limits on religious symbols on government property.

Perhaps the briefs Roberts coauthored do not reflect his personal views, though memos that he wrote, and that have been made public, certainly suggest they do. If there are memos we haven’t seen that indicate something else, it is incumbent on Roberts to produce them and to tell the Senate Judiciary Committee his views on these issues. Should anyone be confirmed for a lifetime seat on the Supreme Court based only on the hope that he or she will not dramatically change the law?


Roberts’ judicial opinions during his short tenure on the federal court of appeals also reveal his staunch conservatism. As an appellate judge, Roberts has expressed great deference to presidential power. He recently joined a decision adopting the Bush administration’s position that the protections of human rights found in the Geneva Conventions are not enforceable in U.S. courts, and that detainees designated as “enemy combatants” may be tried for war crimes before military commissions lacking basic procedural safeguards.

Also, in disagreeing with the other judges on a three-judge panel, Roberts adopted the administration’s position that a presidential order validly eliminated lawsuits against Iraqi officials brought by American POWs for torture they suffered during the 1991 Gulf War.

In virtually every area, all that is known about Roberts shows that he is not a moderate conservative in the mold of O’Connor but likely to move the law far to the right in the years ahead. Roberts has impeccable academic and professional qualifications. But so did Bork. An excellent resume is not enough for the Supreme Court. Democrats must oppose Roberts.