Critics have also targeted Roberts's briefs in abortion-related cases from his time in the first Bush administration. One brief, in the case of Rust v. Sullivan, repeated pro-forma language about Roe v. Wade being wrongly decided and defended the constitutionality of the so-called gag rule, which prevented family-planning organizations receiving federal funds from discussing abortion. How radical can this be when the Supreme Court sided with the administration? And when even David Souter, the liberals' ideal of a Republican-nominated "moderate," joined the majority opinion?
In another brief, Roberts defended the right of Operation Rescue — the militant anti-abortion group — to picket outside abortion clinics. Pro-choicers implausibly argued that the demonstrators were violating a Reconstruction-era civil-rights law meant to protect blacks from the Ku Klux Klan. The Supreme Court ruled 6-3 in the administration's — and Roberts's — favor. So here is the bottom line on abortion: The Supreme Court, whose current abortion-related jurisprudence is considered nearly sacrosanct by the left, agreed with Roberts in two cases in which he signed briefs during the first Bush administration (when it was his job, of course, to argue whatever the administration told him to argue).
None of this is going to get Roberts's critics very far. They are reduced to resorting to the French-fry case. Washington, D.C., had a policy of taking into custody minors who committed offenses in its Metrorail stations. A 12-year-old girl was nabbed eating a French fry and duly arrested. Roberts upheld the constitutionality of the policy, not because he liked it, but because it wasn't unconstitutional: "The question before us ... is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution." It was a unanimous decision.
John Roberts will almost certainly pull the Supreme Court to the right. But there is nothing that Democrats and outside groups will be able to do to stop it, because Borking has met its match.
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