Nothing at all, eh Judge Roberts?

July 20, 2005 § 9 Comments

“Roe v. Wade is the settled law of the land. … it’s a little more than settled. It was reaffirmed in the face of a challenge … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent,” Roberts said in response to a question from Sen. Richard Durbin, D-Ill.


Roberts, a practicing Catholic, lives with his lawyer wife and their two children in Bethesda, Md.

(Italics added).


§ 9 Responses to Nothing at all, eh Judge Roberts?

  • There’s something you have to understand about the hierarchy of law as structured in our judicial system (and I have a feeling I’m going to be typing this on a <>lot<> of blogs in the next few days:Judge Roberts made these comments during hearings for his confirmation to an appeals court of the United States. Appeals courts judges are bound to follow, to the best of their discernment, the precedent laid down for them by the Supreme Court, because the Supreme Court has a higher authority. And like it or not, there is sufficient weight of case law over the past thirty years to make what he said unremarkable. The Supreme Court has affirmed, over and over, in a variety of settings, the constitutional parameters they were establishing on the basis of the ‘right of privacy.’ For Judge Roberts of the Court of Appeals for DC to state beforehand, without any specific case before him, that he meant to rule to the contrary, would have been the sort of thing we supposedly decry — judicial activism.This has no bearing on what he will do as a Supreme Court justice. Imagine a high school student who objects personally to some rule set by the school administration, a rule which we might think substantively stupid or even unjust. Would you counsel the student to disobey the rule? Now suppose the student, years later, comes back to teach at the school — do you suppose his earlier obedience means he will not now try to have the rule changed?

  • zippy says:

    Thank you Kathy, but I am quite aware of how our legal system works (though I am not myself a lawyer).<>…would have been the sort of thing we supposedly decry — judicial activism.<>I don’t decry judical activism qua judicial activism. I am with Augustine, Acquinas, Blackstone, and the Church in understanding the positive law as something that rests on and is subordinate to the natural law; and in fact I think that textualism/legal positivism < HREF="" REL="nofollow">are a big part of the problem, not the solution<>. I do understand that my views are not presently in the mainstream of pro-life views.<>Would you counsel the student to disobey the rule?<>If the rule was an abomination, a grossly immoral violation the natural law, absolutely. We aren’t talking about chewing gum in class here, or about breaking a rule for some self-serving end. Not only would I counsel against obeying it, but I would suggest that publicly affirming its legitimacy could constitute formal cooperation with evil.

  • c matt says:

    What would St. Thomas More have done if nominated for SCOTUS today?I can think of at least two possiblities – (1) he would have declined to serve; or (2) he would have answered the questions on his views about abortion in a way to reveal as little as possible, but without speaking falsely. I would suspect his comment while being confirmed for an appellate level judicial seat would have been a bit different – something along the lines of “I agree it is settled precedent” and probably nothing more.

  • c matt says:

    Still, an Alan Keyes nomination would have made for great viewing during the confirmation process.

  • William Luse says:

    On the assumption that Roberts would rule against Roe v. Wade from a position on the Supreme Court, it seems to me that what Kathy has done is to justify his lying in the past that he might conceal his intentions for the future. The end justifies the means.

  • Tom says:

    I don’t think Kathy is trying to justify lying. I think — and I’m sure I will be corrected if I am wrong — her position is that appeals court judges are bound to follow the precedent laid down for them by the Supreme Court, and therefore Judge Roberts’s answer is, not the Machiavellian duplicity required of anyone who would sneak onto the Supreme Court to overturn Roe v. Wade, but the answer every would-be appeals court judge ought to give; and that, if there <>is<> anything in someone’s personal views that would prevent him from fully and faithfully applying precedent, he shouldn’t be an appeals court judge.So the case as I understand it is for his comments in 2003 to be taken as true, proper, and consistent with a determination to overturn Roe should the opportunity present itself at the Supreme Court.

  • zippy says:

    My understanding of Judge Roberts’ statement is that he is saying “in role X I have no personal problem enforcing positive law A”. That doesn’t mean that in role Y he won’t change positive law A, so there isn’t necessarily an inconsistency in what he is saying with the notion that in role Y he would overturn law A. But what he is most definitely saying is that in a particular role he has no personal problem violating the natural law in favor of positive law. His defenders are saying that that is the right choice: that his moral duty is to violate the natural law in favor of positive law (because of the particular role; but what people don’t grok is that the role is irrelevant). <>If<> I believe that Roberts is telling the truth then I necessarily believe that he is asserting something evil (violating the natural law to enforce positive law) to be good.So either Roberts is dissembling (which I think highly unlikely) or he has convinced himself that in some functional role assignments it is good to do evil.

  • William Luse says:

    You are both (Tom and Zippy) probably right – that he was not lying. The more awful possibility is that he was telling the truth.<>…if there is anything in someone’s personal views that would prevent him from fully and faithfully applying precedent, he shouldn’t be an appeals court judge.<> How is a Catholic to serve?

  • zippy says:

    Or how is anyone rational to serve, as the natural law is not specific to confession and is accessible to the reason of all men?The assertion of legal positivism as a requirement is an assertion that only irrational men need apply.

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