Tea Leaves and the Court

First up, Alberto Gonzales declares that the Supreme Court “is not obliged to follow” Roe v. Wade. On one level, this is a truism: the Court has reversed prior precedents many times before, more often than not at the instance of the more liberal members of the Court, and if a majority of the Court decided to overturn Roe, there’s nothing anyone could do to stop them. I admit that the Court has never really enunciated a consistent or principled standard for when to overturn a constitutional precedent – in fact, it’s hard to identify even a single Justice who’s been thoroughly consistent on the question, and such decisions are usually bitterly divided – but clearly there are few situations more appropriate for overruling a precedent than when a prior decision (1) was wrongly decided, (2) is not at all tied to the text of the Constitution, (3) was clearly not intended at the time the relevant constitutional provision was enacted, (4) resulted in taking an issue out of the hands of elected branches of government, and (5) has resulted in endless controversy and repeated litigation.
That said, Gonzales’ statement is interesting as much for why he said it. There would seem to be at least three motives at work for saying this now:
1. The White House wants to reassure nervous conservatives that John Roberts will take a similar tack;
2. The White House wants to push back on this point itself to take the heat off Roberts, who can’t be expected to make commitments about particular precedents at his hearings; and
3. Gonzales now realizes he has to audition with social conservatives to get on the Court himself someday.
Next up, a fascinating WaPo article looking behind the scenes (as far as they were permitted) at how Bush tabbed Roberts. Read the whole thing; I’ll just add here my impressions of what the article means:
*Andrew Card was the guy in Roberts’ corner (as every successful nominee needs a patron in the process). Which shows that Card has real power. Which, in turn, suggests that Card was a source for the article.
*Then again, David Vitter also comes off as a player, a freshman Senator who got his candidate (Edith Brown Clement) into the final round. This will play well at home. Could also be a deliberate White House effort to do a favor for Vitter, painting him in this fashion.
*Dick Cheney interviewed everyone, if you were wondering if he was engaged in this process.
*Harvie Wilkinson talked to the WaPo, Clement didn’t. This suggests to me that Clement thinks she’s still on the list for the next opening, but Wilkinson doesn’t and is glad it’s known he was considered.
*Card thought Justice Thomas would love the Roberts pick. O’Connor and Rehnquist obviously do. Bush is being savvy picking a guy the other Justices already like. (Which suggests that Bush might well have taken Roberts’ old boss Ken Starr, who shares many of the same traits and has more experience, had Starr not become politically radioactive as a result of being Independent Counsel). Again, the White House may be trying to signal that Roberts is a conservative by noting that Card thought Thomas would like Roberts.
*Justice Thomas attends black-tie dinners for visiting heads of state? I did not know this.
*Bush didn’t even need to interview Larry Thompson. This suggests that the president’s comfort level with Thompson is such that he’ll get tapped for something else big again, especially if Gonzales leaves the Justice Department at some point.
*We get confirmation that outside conservative pressure really mattered in stopping Gonzales. Something for conservatives to remember.
*The detainee issue is one that Bush is focused on. Thus, he appears to have seen Roberts’ joining a ruling upholding the Administration’s policy as a key sign that he was a guy who would stick to his conservative guns. I suspect war-on-terror issues matter more to Bush in the long run than social issues, given Bush’s intense focus on the war.