Right Side of the Rainbow

Expecting that Justice Roberts will prove to be a reliable originalist, I wrote here that conservatives should be thrilled with his nomination. But I also wrote here that we can’t know what he might do with Roe. On the surface, this may appear contradictory; after all, doesn’t every originalist view Roe as a constitutional abomination?

But for reasons explained at length by Judge Robert Bork in his book “The Tempting of America: The Political Seduction of the Law,” it’s not contradictory.

On whether the Federal Constitution conveys a right to an abortion, Justice Roberts will not face a question of first impression; rather, he will face a question answered by precedent. Among other things, judicial conservatives value predictability — and therefore stability — in the law. Judge Bork:

The previous decision on the subject may be clearly incorrect but nevertheless have become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court … [p. 158, ibid]

Judge Bork himself believes it is not too late to overrule Roe, for the decision remains “unaccepted and unacceptable to large segments of the body politic, and judicial regulation could at once be replaced by restored legislative regulation of the subject.” But Justice Roberts may think Roe already too “embedded in the life of the nation” to change now.

The point is we just won’t know until he’s on the Court. Oh, he’ll be asked in his confirmation hearing how he’d vote on Roe. But he won’t answer — and he shouldn’t.

Incidentally, with the ascendence of another originalist now imminent, I recommend you buy a copy of Judge Bork’s book. It’s a thorough and accessible treatment of what was once, and may yet be again, constitutional orthodoxy.

This is also a good time to recall Judge Bork’s losing fight for his own confirmation to a seat on the Supreme Court. When President Reagan nominated him to the Court in 1987, the Left smeared Robert Bork. We have every reason to think the Left will try the same tactic against John Roberts. But this time, it won’t succeed. This time, thanks in part to the right-thinking blogosphere, every lie will be answered — immediately, forcefully and fully.