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Some Research Reactions
Jul. 19th, 2005 06:03 pmIt's John G. Roberts for Supreme Court. [EDIT: I'm editing this as I find random new things. Last edit: 9:17PM] Here we go...
Roe v. Wade: gone. Money quote:
Moreover, Roberts argued, even though the case did not implicate Roe v. Wade, that "[w]e continue to believe that Roe was wrongly decided and should be overruled... The Court's conclusion in Roe that there is a fundamental right to an abortion... finds no support in the text, structure, or history of the Constitution."
Later stated in Federal Appeals Court nomination hearings, "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." However, this seems to apply to someone in a position not capable to overturn it.
1st Amendment:
Roberts co-authored two briefs arguing for an expanded role for religion in public schools. In one case, he co-authored a government amicus curiae brief before the Supreme Court, in which he argued that public high schools should be allowed to conduct religious ceremonies as part of a graduation program, a position rejected by the Supreme Court. 26
In the area of freedom of speech, Roberts co-authored a brief arguing that the 1989 Flag Act did not violate the First Amendment. 28 Two Americans had been prosecuted for burning the U.S. flag in violation of the Act, but both charges were dismissed on the grounds that the law violated the First Amendment right to freedom of speech.
Takings clause and Contract clause - rejecting strict constructionism:
In the first article, Roberts offered his view of the Takings Clause, which requires that the government give "just compensation" for takings of "private property." Roberts claimed that courts trying to ascertain its meaning, "have not been significantly aided by the words of the clause, which are incapable of being given simple, clear-cut meaning... Indeed, the very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice." 40 After rejecting on various grounds several interpretations of the clause traditionally used by courts - i.e. physical intrusion onto an owner's property as anachronistic in a largely non-agrarian society, "noxious use" as too value-laden, and Justice Holmes' 1922 "diminution of value" test as too vague, Roberts argued for a "constrained" model based on a utility-based test proposed by Professor Frank Michelman. Under that model, parties made unwhole or "insecure" by regulation should be compensated accordingly.
In his second article, Roberts took on the Contract Clause, which provides that, "No state shall... pass any... law impairing the obligation of contracts." Roberts argued that this clause should be interpreted to protect corporations from legislation that might increase their obligations to their workers, such as pension protection, and not, as Justice Brennan had asserted, to protect individuals from decisions by states that nullified rights by reneging on contracts. 41 Roberts criticized Justice Brennan's plain language interpretation of the Contract Clause, arguing instead that, "Constitutional protections, however, should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.'" 42 Here, as in his Takings Clause article, Roberts seems unafraid to reject a "strict construction" approach to constitutional interpretation to reach results that favor corporations and wealthy property owners. In both articles, Roberts' non-literal interpretation of the clause seems to fly in the face of President Bush's pledge to nominate judges who would strictly interpret the law, not make it.
Equal Rights:
In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.
Criminal Law:
In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness."
Well known to be supportive of the death penalty. May be likely to be particularly circumspect about it, however, given his personal history (father murdered by carjacker at his home).
Some research points:
SCOTUSblog
NOW
Pro-Life Blogs endorsement
Washington Post
Cache of Advocate write-up.
Misc:
Ruled for wide-ranging powers against anyone designated an enemy combatant.
Social-conservative bloggers are, so far, very pleased. Several commenting that Bush has decided not to back down from a confirmation fight and has picked someone reliably enough socially conservative for them.
Fundamentalists are lining up to support the nomination. Family Research Council: "Judge Roberts is widely respected for his fair judgments, intellect and integrity, all things qualifying him to serve as the next Supreme Court Justice." Focus on the Family: "Bush Nominates Judge John G. Roberts: 'He has a good heart'" and says, "Pro-family legal experts who know Roberts best, say they are extremely pleased with the pick." Note that "pro-family" usually means both "anti-abortion" and "anti-gay," though Roberts himself appears to have little or no track record in the case of the latter.
ConfirmThem.com endorsement
New spin: You can't even prove he wrote that brief, so you can't prove he'll vote to repeal Roe v. Wade. Of course you can't, don't be dumb.
MSNBC talking heads are both stupid and boring. I should have put on some other channel to watch the announcement. Aside from that, they're mostly talking him up as the best reproductive-rights supporters are likely to get and are treating his confirmation as a fait accompli.
Roe v. Wade: gone. Money quote:
Moreover, Roberts argued, even though the case did not implicate Roe v. Wade, that "[w]e continue to believe that Roe was wrongly decided and should be overruled... The Court's conclusion in Roe that there is a fundamental right to an abortion... finds no support in the text, structure, or history of the Constitution."
Later stated in Federal Appeals Court nomination hearings, "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." However, this seems to apply to someone in a position not capable to overturn it.
1st Amendment:
Roberts co-authored two briefs arguing for an expanded role for religion in public schools. In one case, he co-authored a government amicus curiae brief before the Supreme Court, in which he argued that public high schools should be allowed to conduct religious ceremonies as part of a graduation program, a position rejected by the Supreme Court. 26
In the area of freedom of speech, Roberts co-authored a brief arguing that the 1989 Flag Act did not violate the First Amendment. 28 Two Americans had been prosecuted for burning the U.S. flag in violation of the Act, but both charges were dismissed on the grounds that the law violated the First Amendment right to freedom of speech.
Takings clause and Contract clause - rejecting strict constructionism:
In the first article, Roberts offered his view of the Takings Clause, which requires that the government give "just compensation" for takings of "private property." Roberts claimed that courts trying to ascertain its meaning, "have not been significantly aided by the words of the clause, which are incapable of being given simple, clear-cut meaning... Indeed, the very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice." 40 After rejecting on various grounds several interpretations of the clause traditionally used by courts - i.e. physical intrusion onto an owner's property as anachronistic in a largely non-agrarian society, "noxious use" as too value-laden, and Justice Holmes' 1922 "diminution of value" test as too vague, Roberts argued for a "constrained" model based on a utility-based test proposed by Professor Frank Michelman. Under that model, parties made unwhole or "insecure" by regulation should be compensated accordingly.
In his second article, Roberts took on the Contract Clause, which provides that, "No state shall... pass any... law impairing the obligation of contracts." Roberts argued that this clause should be interpreted to protect corporations from legislation that might increase their obligations to their workers, such as pension protection, and not, as Justice Brennan had asserted, to protect individuals from decisions by states that nullified rights by reneging on contracts. 41 Roberts criticized Justice Brennan's plain language interpretation of the Contract Clause, arguing instead that, "Constitutional protections, however, should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.'" 42 Here, as in his Takings Clause article, Roberts seems unafraid to reject a "strict construction" approach to constitutional interpretation to reach results that favor corporations and wealthy property owners. In both articles, Roberts' non-literal interpretation of the clause seems to fly in the face of President Bush's pledge to nominate judges who would strictly interpret the law, not make it.
Equal Rights:
In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.
Criminal Law:
In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness."
Well known to be supportive of the death penalty. May be likely to be particularly circumspect about it, however, given his personal history (father murdered by carjacker at his home).
Some research points:
SCOTUSblog
NOW
Pro-Life Blogs endorsement
Washington Post
Cache of Advocate write-up.
Misc:
Ruled for wide-ranging powers against anyone designated an enemy combatant.
Social-conservative bloggers are, so far, very pleased. Several commenting that Bush has decided not to back down from a confirmation fight and has picked someone reliably enough socially conservative for them.
Fundamentalists are lining up to support the nomination. Family Research Council: "Judge Roberts is widely respected for his fair judgments, intellect and integrity, all things qualifying him to serve as the next Supreme Court Justice." Focus on the Family: "Bush Nominates Judge John G. Roberts: 'He has a good heart'" and says, "Pro-family legal experts who know Roberts best, say they are extremely pleased with the pick." Note that "pro-family" usually means both "anti-abortion" and "anti-gay," though Roberts himself appears to have little or no track record in the case of the latter.
ConfirmThem.com endorsement
New spin: You can't even prove he wrote that brief, so you can't prove he'll vote to repeal Roe v. Wade. Of course you can't, don't be dumb.
MSNBC talking heads are both stupid and boring. I should have put on some other channel to watch the announcement. Aside from that, they're mostly talking him up as the best reproductive-rights supporters are likely to get and are treating his confirmation as a fait accompli.
