Evasive and Non-Responsive on the Right to Choose: Judge John Roberts During His Confirmation to the D.C. Circuit

This document was produced by the National Women's Law Center.

Judge Roberts had two confirmation hearings for the D.C. Circuit (in January and April 2003) and answered written questions from members of the Judiciary Committee after the hearings. In these proceedings, he repeatedly refused to give responsive answers to questions that asked about his views on Roe v. Wade and whether it was correctly decided, or questions about the right to privacy and whether it encompasses the right to choose. Instead of answering these questions, he merely replied that Roe is settled law and that as a Circuit Court judge he would be bound by Supreme Court precedent. His unwillingness to address these questions directly are a special cause for concern now that he is nominated to replace Sandra Day O'Connor. Moreover, his assurances about following "settled law" as a Circuit Court nominee are unavailing from a Supreme Court nominee, since a Supreme Court Justice has the power to unsettle — indeed, completely jettison — "settled law."

Senator Durbin asked Judge Roberts during his second hearing, "And so I am asking you today what is your position on Roe v. Wade?"

• Judge Roberts said, "I don't — Roe v. Wade is the settled law of the land. It is not — it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."
• Other than saying that Roe is "settled," Judge Roberts did not provide any information about his position on the merits of the case or what it stands for. He did not say whether he believes Roe v. Wade should be overruled, whether he agrees or disagrees with its reasoning and outcome, or whether he believes today that it is an important decision recognizing a woman's right to terminate a pregnancy.

Senator Kennedy similarly asked Judge Roberts in written questions, "Do you continue to believe that Roe should be overturned?"

• After noting that he was one of the attorneys on a government brief in Rust v. Sullivan that asked the Court to overrule Roe, he said, "I do not believe it is proper to infer a lawyer's personal views from the position taken on behalf of a client. Roe is binding precedent and, if I were confirmed as a circuit judge, I would be bound to follow it. Nothing in my personal views would prevent me from doing so."
• He did not say whether he believes (or "continues to believe") that Roe should be overturned.

Senator Biden also asked Judge Roberts in written questions, "Do you continue to believe that Roe was wrongly decided? Why or why not?"

• After saying that his personal views should not be inferred from his participation in the federal government's brief in Rust v. Sullivan, Judge Roberts responded, "The Supreme Court decision in Roe is binding precedent, and if I were to be confirmed as a circuit judge, I would be bound to follow it, regardless of my personal views. Nothing about my personal views would prevent me from doing so."
• Again, Judge Roberts did not directly answer the question whether, in his view, Roe was wrongly decided, or provide the reasoning behind that belief.

Senator Feinstein asked Judge Roberts in written question, "Do you believe in and support a constitutional right to privacy? Please explain your understanding of a constitutional right to privacy. Do you believe the constitutional right to privacy encompasses a woman's right to have an abortion?"

• Judge Roberts answered, "If confirmed as a circuit judge, I would be bound by Supreme Court precedent recognizing the constitutional right to privacy. Nothing in my personal views or beliefs would prevent me from applying that precedent fully and faithfully." He then recited the Supreme Court cases that have recognized a right to privacy in a variety of contexts, including Roe, and ended by quoting a passage from Casey stating that "[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood."
• He did not respond to the portions of the question asking whether he believes in and supports a constitutional right to privacy, asking for his understanding of that right, or asking whether, in his view, such a right encompasses the right to abortion.

Senator Feinstein also asked, in her written questions, "Mr. Roberts, do you continue to believe that Roe was wrongly decided? Do you continue to believe that Roe should be overruled? Do you continue to believe that the Supreme Court's decision in Roe [has] no support in the text, structure, or history of the constitution? Do you believe the holding of Roe v. Wade is the settled law of the land?"

• Judge Roberts answered only the very last part of this question, responding, "Roe is the settled law of the land. If I am confirmed as a circuit judge, I would be bound to follow it. Nothing about my personal beliefs would prevent me from doing so."
• He did not answer whether he believes that Roe was wrongly decided, whether he believes it should be overruled or whether, in his view, the decision has any support in the text, structure or history of the Constitution.