Although several days of questioning of senators have proved primarily that Judge John Roberts is brilliantly adept at not answering questions, I think I have learned a few things from his non-answers. I am even prepared to put them in the form of predictions, on the record, so that people can go back and check them against his actual performance on the Court. So here are my Roberts predictions:
1. He will not overrule Roe v. Wade, though he will not extend it beyond current Supreme Court holdings.
2. He will dramatically lower the wall of separation between church and state, and be a reliable vote with Justices Scalia and Thomas on this critical issue.
3. He will uphold the death penalty against both substantive and procedural challenges and will narrow the opportunity of death row inmates to challenge their convictions.
4. He will recognize the President’s broad power to fight terrorism though he will apply literal restrictions on that power that are explicit in the Bill of Rights. In this respect, he will be more like Justice Scalia than Chief Justice Rehnquist.
5. He will not overrule existing gay rights decisions, but he will probably not expand them. In this respect he may be closer to Justice Kennedy than to Chief Justice Rehnquist.
6. He will defer to precedent more than Justice Scalia does, but will not be reluctant to overrule decisions that have not become settled law or that remain controversial within the Court. This will be most evident in his church-state decisions.
7. He will read civil rights statutes enacted by Congress quite narrowly, but if Congress is clear, he will be reluctant to strike down Congressional enactments.
8. He will not become part of the right-wing trend toward striking down federal statutes under a restrictive reading of the Commerce Clause, though in clear cases he will do so.
9. He would not have joined the Equal Protection opinion in Bush v. Gore, but he would have joined the Article 2 decision. In the unlikely event that another Bush v. Gore were to come to the Court, he would vote for the Republican candidate, but only if there were a plausible legal argument in his favor. He would – whether consciously or unconsciously - find the same argument more plausible if made by a Republican candidate than if made by a Democratic candidate.
10. Finally, he will move away from the imperial chief justiceship established by his mentor Rehnquist and will rule the court with less of an iron hand. I wont’ try to predict whether he will remove those ridiculous Gilbert and Sullivan stripes that Rehnquist sported. I think he will be of two minds on that issue. His personal predilection would be against wearing the stripes, but he will not want to suggest criticism of his former boss by removing them immediately.
Alan Dershowitz’s latest book is THE CASE FOR PEACE.