A Sigh of Relief

Commentary: OutRight

How did John Roberts do at his hearing to be the next Chief Justice of the Supreme Court? Before the hearing, I laid out five subject areas of most importance to the liberties of gay Americans. Based on his replies, Roberts did well in four of the five areas. On the fifth, he was silent.

Let’s review the five areas.

1. Does Roberts believe there is a constitutional right to privacy? If so, what would be his methodology in deciding whether a particular activity fell within the protection of this right?

Relying on two-decade old memos that Roberts had written as a young lawyer in the Justice Department, gay groups opposing Roberts before his hearing had cast doubt on whether he supported a constitutional right to privacy. The right to privacy was a basis for the Court’s 2003 decision in Lawrence v. Texas striking down state sodomy laws.

”I think there is a right to privacy protected as part of the liberty guarantee in the due process clause,” Roberts testified. This statement is especially significant because many conservatives have criticized judicial decisions based on the broad word ”liberty.” Roberts elaborated by saying that the right extended to both married and unmarried people.

Perhaps even more importantly, Roberts distanced himself from some judicial conservatives who advocate strict adherence to the specific, original intentions of the Framers. Words like ”liberty” and ”due process,” he argued, are so broad that they seem designed ”to apply in a meaningful way down through the ages.” Robert Bork must have choked on his martini olive when he heard that.

While Roberts declined to say specifically whether he supported the result in Lawrence, that demurral was expected. The modern conventions of the judicial-appointments process call on judicial nominees to avoid commenting directly on recent or controversial cases or issues that might come before the Court. I think this convention is absurd, but Roberts was well within the practice of his recent predecessors, including President Clinton’s nominees.

2. Does he believe Congress has the constitutional power to enact civil-rights laws that forbid private discrimination?

Before the hearing, gay groups had suggested that Roberts might have a very narrow view of federal power that would prevent Congress from banning things like private employment discrimination against gays.

While Roberts declined to answer whether the proposed Employment Non-Discrimination Act (barring anti-gay job discrimination) would be constitutional, he did say that a federal statute barring race and sex discrimination in employment was constitutional under Congress’s power to regulate commerce. For purposes of commerce regulation, there’s no reason to distinguish banning race and sex discrimination from banning sexual-orientation discrimination.

3. Does he believe Congress has the constitutional power to strip the federal courts of all jurisdiction to decide particular issues?

Relying on the same old memos, gay critics before the hearing feared that a Justice Roberts would vote to let Congress forbid federal courts even to hear gay-marriage cases or other claims. Again, Roberts declined to answer specifically whether Congress has such power, citing the fact that these are live matters of controversy in Congress. But he made it plain that he believes such measures are a bad idea because they prevent the Court from ensuring uniformity in the law through its decisions.

4. Does he think a state may forevermore strip a single group of all civil-rights protections?

Gay critics had suggested Roberts might disagree with the 1996 decision in Romer v. Evans, in which the Court struck down a Colorado state constitutional amendment stripping homosexuals of all civil-rights protections.

Because Romer is so recent and controversial, Roberts refused to answer whether he supported it. Given the practice of recent judicial nominees, there was nothing untoward about that. Unfortunately, none of the senators probed the larger question about the constitutionality of the type of laws at issue in Romer. This senatorial negligence can’t be held against Roberts.

I must acknowledge, though, that we can’t take much comfort in Roberts’s pro bono work for the gay side in Romer. He made a point of saying that he was just doing his job as a lawyer in the case and that he might have worked for the anti-gay side had they reached him first.

5. When, if ever, does he think the Court should adhere to a decision that he believes was wrongly decided?

On the question of stare decisis, Roberts was effusive in his strong defense of stability and continuity in the law. He was so adamant about this, in fact, that many legal scholars came away convinced that he would not even vote to overrule Roe v. Wade, the abortion decision that gay groups like HRC seem most anxious to preserve. Roberts’s respect for precedent bodes well for keeping Romer and Lawrence, even if Roberts disagrees with them. If anything, his promotion to Chief Justice will make him even more cautious about radical doctrinal changes that might undermine the institutional stranding of the Supreme Court.

About the only thing he got plainly wrong was his praise of Doctor Zhivago, a dreadful bore of a movie.

Overall, we should be relieved. ”He is not in the mold of Scalia and Thomas,” said one prominent conservative legal theorist, with evident disappointment. If Roberts had been defeated, as prominent national gay groups advocated, we could have done much worse.

Dale Carpenter is a law professor. He can be reached at OutRight@metroweekly.com.