This article is encouraging, given, you know, everything else. I was recently lamenting the political nature of modern Supreme Court nominations, wishing we could return to the days when nominations were
based on legal prowess, rather than stance on issues. I don’t doubt that Roberts’ stances, where they are discernable, are not necessarily in line with my own, and I’d rather he err with the Constitution rather than with the legislature, but… It’s also possible that he sees the difference between a district court and the Supreme Court, and will be less likely to side with legislatures when his is the final word.
Anyway, it’s impossible to know what kind of justice he will turn out to be, but I’m thinking it could be a lot worse.
I think, at this point, almost everybody has praised Roberts for his legal abilities and considers him an affable fellow, with the one big issue in the way of confirmation his position on Roe. In a 1991 legal brief in Rust v. Sullivan (which everyone who cares has seen by now), Roberts and colleagues indicated that Roe was “wrongly decided and should be overturned.†My position on reproductive rights aside (I support abortion rights in most cases), Roe, like its predecessor Griswold (a serious exercise in legal creativity if there ever was one), probably WAS wrongly decided in terms of a strict reading of the Constitution. And Roberts, despite his dodge on the Rust brief, likely agrees with its content in principle. However, he also has said that he is an adherent to legal precedent, so I’m not 100% certain he would move to overturn Roe even if he had the opportunity, especially given the ramifications that such a ruling could cause.
More interesting to me is where Roberts would have come down in the recent medical marijuana case. Would he have stuck to his strict constructionist guns and voted against federal authority to prohibit and prosecute individuals for the possession and use of medical marijuana, or would he have sided with the majority and continued to stretch the Commerce Clause closer to the point where EVERYTHING is considered part of interstate commerce? I like to think the former, which means Roberts might not prove such a bad choice. In the end, I want a justice who is serious about the Constitution and will defend the integrity of the document, regardless of where the politics lead in the case.