Q: What abortion-rights cases are expected to come
under the Supreme Court's review in the fall? What do
Americans think of abortion restrictions? Can you tell
from past cases how the justices will approach this
type of case?
One abortion case already has been accepted for high
court review this term and another is headed its way.
In November the justices will hear arguments in Ayotte
v. Planned Parenthood of Northern New England. The case
will test whether states that require a pregnant underage
girl to notify a parent before having an abortion must
have an exemption when the girl's health is at risk.
A federal appeals court struck down the law, saying
it could endanger minors who need an immediate abortion
for health reasons.
Separately, a constitutional test of a federal ban
on the abortion procedure that critics call "partial
birth" may soon be at the court. In July a federal appeals
court invalidated that ban, which Congress passed in
2003. Again, the lower court cited a need for a health
exception. The case, Carhart v. Gonzales, could end
up appealed to the Supreme Court.
Regarding public opinion on abortion, polls show that
a majority believe abortion should be legal but with
state regulations. The key question is how far that
regulation can go, given that the Supreme Court has
said governments cannot put an "undue burden" on a woman's
right to end a pregnancy.
Finally, I cannot predict what the Supreme Court will
do on these questions, but I can say that many abortion
cases in recent decades were decided by a single vote.
Q: Judge Roberts made some controversial comments
about women's rights in his earlier documents. From
your informed perspective, did many of his remarks seem
like light-hearted jokes or do they reflect a deeper
judicial philosophy? How are they received by senators,
especially women senators?
Roberts' writings from his Reagan years showed a resistance
to policies intended to give women a break in the work
force or spur better pay. He also, at times, appeared
to adopt a mocking tone toward women's rights advocates.
In some instances, he was criticizing ideas that were
not widely embraced within the administration or by
the public generally. For example proposals for "comparable
worth," which involved the notion of equal pay for different
jobs of comparable value, based on factors such as skills
and responsibility, never went anywhere.But Roberts
also sought narrow readings of Title IX, a highly touted
law that prohibits sex bias in schools receiving federal
funds and that has created many opportunities for young
women in sports.
Further, the flippant tone of some of Roberts' memos
regarding women's rights has drawn concern. Sen. Olympia
Snowe, a Republican from Maine, happened to be a subject
of one of his derisive memos (as a member of the House
of Representatives in 1984 she advocated new ways to
raise women's pay). Snowe said recently that she hoped
that now - more than two decades later - Roberts' consciousness
had been raised. I'm sure senators will probe Roberts'
views toward women and programs intended to end sex
bias.
I have to add that this is an area of the law in which
John Roberts might stand in sharp contrast with Justice
O'Connor, who was always on the watch for ways to overcome
discrimination toward women.
Q: One high-profile issue-advocacy group, NARAL
Pro-choice America, got a lot of attention earlier this
month when the group rolled out a TV ad sharply critical
of Judge Roberts. In recent days the group began running
a new, milder anti-Roberts spot. What was behind the
switch? Should TV viewers nationwide expect to see more
ads, both for an against confirmation of the nominee,
to hit the airwaves once the hearing opens?
The first ad focused on Roberts' actions when he was
deputy U.S. solicitor general in the George H.W. Bush
administration and had argued that abortion protesters
could not be sued under a civil rights law for blocking
women's access to clinics. The Supreme Court agreed
with the argument. The NARAL ad implied that Roberts
was sympathetic to those who engaged in violence at
clinics. Conservatives denounced the rhetoric and even
some Democrats and abortion rights advocates said it
crossed the line. Politically, the ad backfired by putting
NARAL, rather than John Roberts, under attack.
I think TV viewers will be seeing a few more ads as
interest groups begin announcing their opposition, or
support, for the nominee.
Q: How is Judge Roberts preparing for his confirmation
hearing? How are the senators getting ready for it?
And what about reporters who cover the high court?
Everyone is reading up on past cases. The nominee wants
to be ready for all conceivable questions. Senators
want to be able to make intelligent, relevant queries
about the law. And reporters want to understand the
legal context of our times, particularly areas of the
law in which a single vote could make a difference.
Administration officials are looking at how earlier
nominees handled questions, considering the potential
flashpoints. John Roberts is engaging in mock hearings
and, as nominees in the past have done, preparing language
designed to answer senators' queries but not be so elaborative
that he risks new opposition. The hearings will be televised,
so he will also, in effect, be speaking to the American
public.