Roberts to overturn Roe? Don’t bet on it

WRITING IN the Harvard Crimson recently, Adam Guren, a Harvard student from Los Angeles, may have revealed the most obscure factoid uncovered so far about John G. Roberts Jr. One of Roberts’ college roommates told Guren that the Supreme Court nominee could never do without Pepto-Bismol -- that “he always had a bottle or two in hand.”

This may be one of the few known facts about Roberts that did not find its way into a 108-page report on the nominee’s record compiled by the Alliance for Justice, a coalition of dozens of liberal advocacy groups that could have been counted on to oppose any Bush nominee without going to the trouble of writing so many single-spaced pages to justify the decision.

In fairness, the alliance’s analysis of Roberts’ record is impressively thorough, and it’s restrained by the shrill standards of most advocacy propaganda. Culling through his quarter-century career in the Reagan White House counsel’s office, the solicitor general’s office, a private law firm and the federal court of appeals, the report exhaustively builds the case against Roberts. Read the 108 pages and you will be convinced beyond a reasonable doubt that -- indeed -- Roberts is a conservative.

One problem for the alliance is that most Americans were not counting on Bush to appoint the next William Brennan or Thurgood Marshall to the court. The president has been saying for years he’d be inclined to go with someone like Clarence Thomas or Antonin Scalia. But the bigger problem for the alliance is that Bush has reneged on his campaign promise. Roberts is not Scalia or Thomas. He is not a right-wing judicial activist eager to chisel away the liberal expansion of the Constitution in recent decades in order to restore some halcyon original intent on the part of the Constitution’s authors.

That’s a bit too chaotic for Roberts, who seems to revere the law’s ability to provide society with a sense of order and predictability. The most-parsed statement by Roberts came in his 2003 confirmation hearing to serve on the U.S. Court of Appeals for the District of Columbia Circuit, when he said that the 1973 Roe vs. Wade ruling establishing a constitutional right to an abortion based on the right to privacy is “the settled law of the land.” Critics say he will think it’s less settled when he is in a position to overturn it, but that seems implausible. In fact, send me a self-addressed envelope within a week and I will mail you $1 (and pay for postage) if Justice Roberts votes to overturn Roe.

My willingness to wager on whether Roberts would reverse Roe reflects a betrayal by Bush of his hard-core social conservative base, for whom this issue is paramount. Bush had plenty of candidates for his first Supreme Court nomination who were clearly in the Scalia-Thomas mold and would have generated no such mystery about their intentions toward Roe, and who could have been rammed through by a Republican majority willing to nuke the filibuster. And yet he passed on them. Liberal advocacy groups can’t admit this because they have an institutional need to foster the sense that we are in the midst of an epic showdown. But Democratic senators do understand that Roberts is not their worst-case scenario.

Or that maybe, in a sense, he is. As one liberal Democratic senator told me, the Roberts nomination tells him that at the end of the day, after they’re done energizing their base by paying lip service to an extremist agenda, GOP operatives are too smart to commit political suicide by actually overturning Roe vs. Wade, a decision that has always represented the view of most Americans.

The alliance report and others read far too much into what Roberts was writing as a young lawyer in the Reagan White House on issues like the Voting Rights Act and the separation of church of state, though these writings also help bolster the judge’s street cred among social conservatives. Once again, though, Democratic senators don’t seem too exercised. Maybe that’s because these politicians can appreciate how much their own thinking has evolved over a quarter of a century and that an appellate judge who has been a leading Supreme Court litigator and is a bona fide member of the D.C. establishment (who’s offered pro bono advice to a gay rights group) is likely to have a more expansive worldview than he did when he was a young foot soldier in the Reagan counterrevolution.

Then again, even in 1984, Roberts could wield an acerbic pen on behalf of his independent mind, as when he objected to the president going around calling the United States “the greatest nation God ever created” in speeches. “According to Genesis,” Roberts wrote, presumably going beyond his legal duties, “God creates things like heavens and the Earth, and the birds and fishes, but not nations.”