Turkey Supreme
by Lila Rajiva
www.dissidentvoice.org
July 21, 2005



 

Bush's nomination of John Roberts to the Supreme Court is a slap in the face of women. Out of nine justices, there were only two women to begin with -- Sandra Day O'Connor and Ruth Bader Ginsburg. That is to say, until last week, only a bit more than 20% of the most intellectually weighty branch of government was drawn from the 52% of the population that is female. And if Roberts gets in, the female contribution falls to just over 10%.

OK, so the justices are not supposed to be representative; the executive gets to appoint the most qualified candidates, letting the chips fall where they may. It just so happens that the chips fell on eight white justices and one black. And that all except one graduated from Ivy League law schools. And that none are progressive, but come out of the center-right and the far right. So let's not suggest that the Supremes aren't a representative body. They represent one part of the population pretty well: male, white, and middle or upper class.

But the judiciary is supposed to be judicious. Gray hairs with experience. That's why, so far, eight justices have birth dates before 1940 (Stevens’ is in 1920 and Rehnquist's is in 1924). So why Roberts, who at 50 and with only two years experience as a federal appeals judge, will be the youngest by far and the least experienced? Perhaps the thinking is, the less experience he has, the fewer public utterances for critics to pounce on. Think Bork.

How bad is Roberts for women? Publicly, of course, he toes the line. "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent," he stated during his confirmation hearings in 2003.

But actions speak louder than words:

1. As Deputy Solicitor-General, he wrote a brief arguing: "[W]e continue to believe that Roe was wrongly decided and should be overruled." (Rust v. Sullivan).

2. As DSG, he also wrote an amicus curiae brief, which he was under no obligation to write, denying that the tactics of anti-choice groups like Operation Rescue in blocking access to clinics and harassing health care providers constituted discrimination against women. Anti-choice harassment to Roberts is merely free speech (Bray v. Alexandria Women's Health Clinic).

3. As a lawyer under Reagan and Bush I, he argued that doctors receiving federal funding should not suggest abortion as an alternative.

In all three cases, his line was essentially his boss's line.

None of this necessarily makes Roberts an anti-choice fiend personally, but neither does it give women much comfort.

Bush could have chosen a far more qualified conservative jurist whom many liberals would also respect as possessing genuine intellectual independence -- Michael McConnell, a prolific former University of Chicago law professor. McConnell personally disagrees with Roe but has repeatedly and convincingly asserted that he sees it as the settled law of the land, not to be overturned. McConnell's views, however disagreeable to many progressives, bear the mark of a consistent philosophical view: in his case, his originalist approach to the Constitution and his Catholicism.

Roberts, however, is a bird of another feather. His dissent from the privacy rights enunciated in Roe seems to be less from personal conviction than from a consistent preference for the state over the individual evident in many of his writings, for instance, in habeas corpus (Fletcher v. District of Columbia, 2004) and criminal cases (U.S. v. Brown, 2004).

The only time he doesn't favor the state is when it's going up against business (Rancho Viejo v. Nortion, 2003 and other environmental cases.

In short his "conservatism", like Scalia's, is always weighted on the side of the big boys.

That's important to think about, because after all, at issue is not only what John Roberts might think about Roe but whether at a time when the executive has arrogated unprecedented privileges for itself, the justices of the Supreme Court can act as an independent foil to the abuse of power. Clearly, Roberts does not hold out much hope in that direction.

So the lack of "red meat" dicta about abortion in his record doesn't mean a thing. Roberts on the Court will do what Roberts in government did -- side with the government and business, i.e. the powerful -- the only constituency he represents. And we know what the government -- a.k.a. George W. Bush -- thinks about a woman's right to choose.

Women, be very afraid.

Lila Rajiva is a freelance writer based in Baltimore, and author of the forthcoming book The Language of Empire: Abu Ghraib and the US Media (Monthly Review Press, 2005). Her M.A. from Johns Hopkins in Political Science focused on constitutional law, international relations and political theory. She can be reached at: lrajiva@hotmail.com. Copyright (c) 2005 by Lila Rajiva

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