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"A Nominee after Bush's Own Heart"--A Commentary by Prof. Jack Balkin


(This essay was originally published in the July 21, 2005, edition of Newsday.)

A Nominee after Bush's Own Heart
By Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment

President George W. Bush's selection of John Roberts sends a clear message for those willing to hear it: Roe v. Wade is here to stay. The real questions are whether Roe will be hollowed out and made irrelevant, and what other issues will dominate the future.

At his federal appeals court confirmation hearings in 2003, Roberts said Roe was "the settled law of the land" and he could "fully and faithfully" apply that precedent. I don't believe he was lying.

However, replacing Justice Sandra Day O'Connor with Roberts is likely to mean the Supreme Court will uphold many more laws restricting abortion. The list of such laws is endless, ranging from partial birth abortion bans to limits on abortions for minors. Courts now enjoin new abortion laws as soon as they are passed if they burden some women's right to abortion. But next term the court will decide whether to change that rule. If it does, states could pass stringent restrictions on abortion; these could remain on the books for years until lawsuits knock away the most blatantly unconstitutional features. That is not the same as overturning Roe v. Wade, but its practical effect is very similar.

Thus we may get a symbolic Roe v. Wade that prohibits outright criminalization but allows many practical obstacles. Something similar happened to another highly contested decision, Brown v. Board of Education. After years of fights over busing, our public schools are once again effectively segregated, even though schools can't deliberately assign pupils by race.

Because Roe won't be officially overruled, many Americans won't even notice its gradual erosion. Hence the biggest fights over social issues will lie elsewhere: stem cell research, genetic engineering and homosexuality. As with Roe, the court's 2003 opinion in Lawrence v. Texas striking down state sodomy laws can be read broadly or narrowly. With Roberts, it will probably be read narrowly. But the gay rights movement will make progress, with or without the court's help. The younger Americans are, the more likely they are to be tolerant of homosexuality and same-sex marriage. In the long run, demographics will resolve the issue, and the Supreme Court (and the Republican Party) will grudgingly go along.

Roberts will probably construe labor, civil rights and environmental laws narrowly, too. But like most establishment conservatives, he will prove a fair-weather federalist, invoking state's rights opportunistically to promote a pro-business agenda. As a D.C. Circuit judge, he expressed constitutional qualms about the reach of the Endangered Species Act.

Some conservatives hope (and some liberals fear) that Roberts will help bring back the so-called Constitution in Exile that would overturn the New Deal. That's not going to happen. Bush's party likes big government; it wants to grant favors to business interests through selective regulation, tax breaks and subsidies. Shifting tax burdens away from corporations and the rich, national tort reform, relaxing environmental and fair labor standards, and partial privatization of Social Security - all require federal regulatory power both robust and selective. Roberts is unlikely to get in the Republicans' way.

The most dangerous issue is presidential power. Bush has pushed the constitutional envelope, throwing U.S. citizens in military prisons without hearings, and demanding the right to search without judicial warrants. His lawyers claim Congress can't interfere with his interrogation practices, even if cruel, inhuman and degrading.

Absolute power corrupts absolutely, and courts are one of the few institutions with an interest in preserving the rule of law from an overreaching executive. Don't expect Roberts to stand up to Bush. Roberts will support the president.

And that's exactly why Bush chose him.


Jack M. Balkin is professor of constitutional law and the First Amendment at Yale Law School. His latest book is "What Roe v. Wade Should Have Said."