September 19, 2005
Monday

WASHINGTON - Long before John G. Roberts Jr. testified before the Senate Judiciary Committee last week, liberal groups and some Democratic senators were suspicious of the chief justice nominee because of President Bush's high praise for the Supreme Court's two most conservative members, Justices Antonin Scalia and Clarence Thomas.

After Roberts' hearings, some liberal groups said they still worry that Roberts will follow in the judicial footsteps of Scalia and Thomas.

"While Roberts wanted to give the impression he respected the right to privacy and the precedent of Roe v. Wade, his answers look dangerously similar to the responses Clarence Thomas gave senators during his confirmation hearings 14 years ago," said NARAL Pro-Choice America. "Thomas also gave grandiose remarks about respecting precedent and the right to privacy during his confirmation hearings. One year later, Justice Thomas voted to overturn Roe v. Wade."

But most legal observers listening to Roberts' testimony believe he did offer reason to hope - or fear, depending on one's point of view - that he will not be a Scalia or Thomas clone. They cite his comments about the respect owed to precedent, his embrace of a right to privacy as part of constitutional "liberty," and his insistence that the Supreme Court was being faithful to the framers' intent when it adapted the Constitution's "broad terms" to changing conditions.

"Roberts did in many respects distance himself from Scalia and Thomas," said Arthur Hellman, a law professor at the University of Pittsburgh. "I think that came through most when he talked about precedent."

Hellman noted that Roberts, without saying how he would view a challenge to Roe v. Wade, offered an elaborate litany of the factors he would consider in deciding whether to overrule a previous ruling - including the fact that public expectations had grown up around it - and made it clear that believing a precedent was wrongly decided in the first place is not sufficient reason to repudiate it.

Roberts also suggested that weight must be given to the fact that the Supreme Court reaffirmed the "essential holding" of Roe v. Wade in the 1992 case of Planned Parenthood v. Casey.

"One of the most interesting things about the hearings was the discussion of the precedent about precedent, the notion that there is a jurisprudence of stare decisis about when you overrule precedent and when you don't," Hellman said.

Although he noted that Roberts also mentioned decisions in which the court overturned precedents, Hellman said the nominee's comments augured well for the preservation of abortion rights.

"I would predict with a very high level of confidence that he would not vote to overrule Roe v. Wade," Hellman said.

Abortion aside, Michael A. Vatis, a Washington attorney who served as a law clerk for the late Justice Thurgood Marshall, also was struck by differences between Roberts' comments and the approach taken by Scalia and Thomas.

"In the way he described his approach, he gave us a sense of somebody who would be much closer to the late Chief Justice (William) Rehnquist than to Thomas and Scalia," Vatis said.

"Thomas and Scalia have what they describe as a very coherent judicial philosophy. Scalia describes himself as an 'originalist' in that he interprets the Constitution almost entirely on what he thinks the framers intended in certain clauses. Roberts clearly said that that was not his approach because he doesn't think that gets you very far with some of the more generally worded constitutional amendments or sections of the original Constitution."

Not all legal observers are so sure that Roberts' testimony foretells a significant split with Scalia and Thomas, on abortion rights or anything else.

Eugene Volokh, who teaches constitutional law at UCLA Law School, says that Roberts' remarks about the importance of precedent were not surprising.

"Everybody believes in that to some extent," Volokh said, "though Justice Thomas is most willing to reverse precedent in constitutional cases, considerably more willing than Justice Scalia. Even Thomas believes in precedent because you can't run a court system without some degree of reliance on precedent ... The question is one of degree."

Although most of the speculation on whether and how Roberts would depart from Scalia and Thomas has focused on issues of sexual privacy, last week's hearings pointed to some other potential differences.

- Sex discrimination. Despite memos he wrote as a lawyer in the Reagan administration questioning whether laws discriminating on the basis of gender should be subjected to "heightened scrutiny" by federal courts, Roberts testified that he accepts the Supreme Court's current standard for such laws - that they must be substantially connected to the achievement of an important government objective.

- Legislative history. In interpreting acts of Congress, Scalia refuses to be guided by committee reports and statements by members of Congress about what a law is intended to accomplish. At his hearings Roberts said that as an appeals court judge he has found legislative history "quite useful."

- Church and state. As a deputy solicitor general in the George H.W. Bush administration, Roberts supported the constitutionality of a graduation prayer at a public school. But last week he indicated that as a justice he would start his analysis of church-state cases with the so-called Lemon test announced in a 1971 Pennsylvania case which says, among other things, that to be constitutional a religious practice on government property must have "a secular legislative purpose."

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