Dispatches from the Creation Wars

Initial Thoughts on Roberts Nomination

Posted by Ed Brayton on July 20, 2005
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Given a night to sleep on it and a bit more research, here are my initial thoughts on the nomination of John Roberts for the Supreme Court. First, let me note that there are different meanings to the word “conservative” in this context. Robert Bork, Antonin Scalia, Clarence Thomas, Michael McConnell and Alan Keyes are all labelled “conservatives”, yet there are wide differences among them on such basic issues as the role of the Declaration of Independence in constitutional interpretation, the importance of stare decisis, and whether legislative history is relevant to interpreting a statute. Conservatives are not a monolithic group of one mind on everything and to treat them as such is to oversimplify and distort reality. And in my view, some of them are worth opposing and some are not.

Scalia, for example, has been pretty solid on civil liberties. He joined the majority in the decision that legalized flag burning, and he issued a stinging rebuke of the Bush administration concerning their claim to be able to suspend habeas corpus in specific situations without an order from Congress. Robert Bork, on the other hand, has argued that the first amendment should protect only explicitly political speech, not literary, scientific or artistic speech. In this regard, I would argue, one is far more justified in opposing the latter than the former. And this is but one example.

I have often distinguished between intellectual conservatives and what I commonly label partisan or pedestrian conservatives. It certainly appears to me that John Roberts belongs in the first group. He is by all accounts thoughtful, brilliant, independent minded, and decent. The fact that he has won the almost universal respect of his fellow legal scholars who would oppose him ideologically carries a lot of weight with me. There was no doubt that Bush was going to nominate a conservative, and there’s no doubt that the Senate will confirm a conservative for the court. The question is, what kind of conservative? Roberts looks a lot more like a Clarence Thomas conservative than a Robert Bork conservative. And that’s okay with me.

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Comments

  1. #1 John
    July 20, 2005

    One of my concerns is how the Supreme Court will deal with gay rights. I believe the current state of law is out of whack, what with some statez allowing some form of civil unions and many states refusing to recognize them. I think there has to be some sort of federalization of rights and benifits. My belief is that the problem of gay rights is a legal matter which should be completely independant of one’s views of homosexuality. My concern is that naked bigotry will prevent the court from fairly applying the law.

    I haven’t seen anything yet in Robert’s track record that would give a clue as to how he would rule.

  2. #2 Ed Brayton
    July 20, 2005

    John-

    I don’t think the Supreme Court is likely to get involved in any federalization of gay marriage, on either side, any time soon. I think there’s a decent chance that the DOMA will get challenged in court in the next few years and they may well take that up, but I don’t think the court will take a case to either ban or mandate gay marriage at a federal level. They refused to get involved in overturning the Massachusetts decision (and rightly so). They struck down a state referendum that was obviously anti-gay in Colorado (and rightly so). And they struck down anti-sodomy laws (and rightly so). But marriage contracts have always been controlled at the state level and I don’t think the Court is likely to change that in the near future. Eventually, if a majority of the states begin to legalize gay marriage, it might lead to a Loving-style decision for gay marriage, but I would guess that is 2 or 3 decades away yet.

  3. #3 John
    July 20, 2005

    Connecticut recently refused to divorce a same sex couple married in Massachestts, while Iowa divorced a couple joined in Vermont. It seems to me that these kind of controversies will find their way into federal courts faily soon.

  4. #4 Anon
    July 20, 2005

    There are two key issues in the whole gay marriage/rights thing that will need to be addressed.

    1. Courts will need to address recognizing same sex marriages performed in states at the federal level.

    2. Courts will need to decide once and for all whether homosexuals are suspect, semi-suspect or non-suspect for basis of scrutiny. Many decisions have sidestepped this issue by finding on rational basis and never setting foot in the intermediate or strict scrutiny areas.

    IMO, taking on DOMA in the courts without #2 is courting disaster (pardon the pun).


    But marriage contracts have always been controlled at the state level and I don’t think the Court is likely to change that in the near future.

    The issue isn’t so much whether marriage contracts are controled at the state level or not, but whether the federal government should recognize all state marriage contracts or only state marriage contracts of opposite sex couples. It all depends on how many justices will buy into it:

    1. Being a case of sex discrimination and provide it with intermediate or strict scrutiny.
    2. Being a case of sexual orientation discrimination and
    a. Find for or against a rational basis for it.
    b. Find for or against a intermediate basis for it.

    Now if:
    1. It were confirmed that homosexuality were immutable and not a behavioural function or
    2. If things were to get a lot worse for homosexuals politically and they could not get representation,
    They would then be elevated to suspect class and be automatically given intermediate or strict scrutiny which would be sufficient to soundly defeat DOMA.

  5. #5 Ed Brayton
    July 20, 2005

    John wrote:

    Connecticut recently refused to divorce a same sex couple married in Massachestts, while Iowa divorced a couple joined in Vermont. It seems to me that these kind of controversies will find their way into federal courts faily soon.

    They will enter Federal court only insofar as it involves DOMA. But DOMA is a Federal law, so that is appopriate. Beyond that, I think the Court will stay out of the issue entirely for the foreseeable future.

  6. #6 John
    July 20, 2005

    Ed,

    From a strictly legal sense, I hope you’re right. A long informed debate will eventually conclude (I hope) with fariness for all couples.

    But then, I’m straight. I can’t appreciated how same-sex couples feel.

  7. #7 Ed Brayton
    July 20, 2005

    John-

    I’m just making predictions about what the court will do. I’m strongly for gay marriage myself. I don’t think the court will get involved beyond the DOMA issue, where I expect them to rule that DOMA is constitutional and that the states do not have to honor gay marriage licenses from other states. But that will not be a shock to anyone. I don’t think the courts will intervene beyond that in either direction, to squash state gay marriage policies or to mandate gay marriage at the Federal level.

  8. #8 John
    July 20, 2005

    I’ll make a prediction, too. When it gets to the federal level, the court will rule that the part of DOMA that allows the states to ignore each others marriage laws is constitutional, but, the part that allows the Federal goverment to ignore legal marriages will be stuck down. It has to be stuck down. Fairness demands it. Equal protection demands it.