At risk: Roe, rights and religion

Richard Schragger is an associate professor at the University of Virginia School of Law.

Democrats knew that whoever was chosen to fill Justice Sandra Day O’Connor’s seat on the Supreme Court was going to be conservative and that he would have the opportunity to change the balance of the court in three monumental areas: abortion, civil and political rights, and separation of church and state. What they might have thought was that they’d have a choice about which area of law they would have to sacrifice. But, with John G. Roberts Jr., it looks like they will lose on all three “Rs”: Roe, rights and religion.

First, Roe. Though the “right to choose” appears to have a 6-3 majority on the court, that majority is thin and deceptive. The court will have to decide the constitutionality of bans on so-called partial-birth abortion, and it may have to address revived state spousal-notification laws and restrictions on abortion providers, such as zoning laws or government filing requirements.

As deputy solicitor general in the George H.W. Bush administration, Roberts argued that Roe vs. Wade was wrongly decided. If he is consistent, he’ll probably vote to overturn it when and if he’s offered the chance. And even if that isn’t possible, given the majority that supports it, he seems likely to be in favor of nibbling away at abortion rights where possible. Though O’Connor was uncomfortable with abortion, she was a solid vote to prevent the dilution of Roe. Roberts’ position that Roe was wrong could mean that he will take whatever swings he can at it.

Second, rights. O’Connor was skeptical of executive power and joined the other moderates in rejecting the Bush administration’s expansive interpretation of its powers to detain “enemy combatants” in its “war” on terrorism. Roberts is serving on the U.S. Court of Appeals for the District of Columbia Circuit, where he recently gave a free pass to the administration, holding that the Geneva Convention could not be enforced by the detainees at Guantanamo Bay, Cuba, and reinstating the show trials there. Other decisions by Roberts while he has been on the appeals court indicate that he has embraced a narrow interpretation of the 4th Amendment’s ban on unreasonable search and seizures (including his decision to uphold the arrest of a 12-year-old girl handcuffed by police on the Washington subway for eating a single French fry).


Third, religion. Though O’Connor voted with the conservatives to allow school vouchers to fund religious schools, she joined the moderates in enforcing the separation of church and state in other areas. Roberts wrote briefs for the George H.W. Bush administration urging a less rigid separation between church and state and argued in favor of permitting prayer at high school graduation ceremonies, a position the Supreme Court later rejected.

To the extent his views match his former boss’, Roberts could provide the fifth vote to return prayer to schools, allow a significant expansion of government-sponsored religious displays and funnel more money to faith-based service providers. This agenda is crucially important to the religious right, which has been particularly aggrieved by O’Connor’s middle-of-the-road church-state jurisprudence. In many cases that jurisprudence turns on one vote.

It is worth noting that Roberts was acting as a Bush administration lawyer when he took his positions against Roe and in favor of school prayer, and it may be that they do not reflect his personal beliefs. Nevertheless, it is all we have to go on at the moment -- our best indication of his thinking.

Roe, rights and religion. One might have advised the Democrats to pick their poison with any of Bush’s nominees. Roberts, however, does not seem to give them that chance. He is apt to undermine settled constitutional law with all three.