John Roberts’ philosophy

The Washington Post has an interesting article on the legal philosophy of aspiring Chief Justice Roberts. Roberts, it says, is devoted to legal process – not legislating from the bench, in other words. Now, I say this as a European liberal in a Parliamentary system, but that attitude does have a lot to recommend it.

For all the iconic status now placed on Roe v. Wade, it can be argued from a democratic point of view that judges creating rights out of – essentially – thin air is undesirable, particularly in such a contentious area. I speak as a supporter of abortion availability (alongside measures to reduce its incidence), but would it not have been better for states (or the Feds) to have introduced something like Britain’s 1967 Abortion Act.

Then there would have been a debate, a democratic agreement, and (as in the 1967 Act) provision could have been made for people with a conscientious objection not to participate in the process. To apparate a right to an abortion, however hedged around, and however supported by the public as a whole, is always going to be undemocratic in the eyes of its opponents. What is more, as Katha Pollitt mentions in a recent issue of The Nation, it can make supporters of abortion rights lazy, and over-reliant on the existence of a constitutional right rather than winning hearts and minds.