by JAMES TARANTO
Wednesday, September 21, 2005 3:20 P.M. EDT

Stare-Eyed Surprise
Something has been bothering us about the John Roberts hearings last week. We refer to Roberts's comment on Roe v. Wade: "It's settled as a precedent of the court, entitled to respect under principles of stare decisis."

Some commentators have taken this as a signal that Chief Justice Roberts would vote to uphold Roe. We don't agree. In fact, Roberts's statement tells us nothing about how he would vote. Stare decisis is precisely the doctrine of respect for precedent, so the statement that Roe, as a precedent, is "entitled to respect under principles of stare decisis" is a tautology.

But here's what bugs us: Let's assume that Roberts is undecided about whether to overturn Roe but thinks it was wrongly decided back in 1973. (He didn't express an opinion on the latter point at the hearings, of course.) Suppose further that a few years from now a litigant asks the court to overturn Roe, and that by this point President Bush has appointed two associate justices, both anti-Roe, so that the current 6-2 split has become 4-4, meaning that the chief's vote is decisive.

How does Roberts decide whether to bow to precedent and uphold Roe or correct an error and strike it down? As it happens, seven justices faced this question in 1992. In Planned Parenthood v. Casey, three of them (Sandra Day O'Connor, Anthony Kennedy and David Souter) joined the two justices who thought Roe was correctly decided (Harry Blackmun and John Paul Stevens) to uphold "Roe's essential holding." Here is an excerpt from the O'Connor-Kennedy-Souter ruling, for which all three claimed authorship:

Where, in the performance of its judicial duties, the [Supreme] Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . ., its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.

Justice Antonin Scalia, dissenting from this part of the ruling, sharply disagreed:

The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue--as it does over other issues, such as the death penalty--but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

That Scalia had the better of this argument is all the more clear given that we are still debating this matter 13 years later and 32 years after Roe. But note that this is an argument over politics, not law. Indeed, Roe's author, Justice Blackmun, was even more crassly political in his Casey opinion:

In one sense, the Court's approach is worlds apart from that of the Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short--the distance is but a single vote.

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

What's so impressive about Judge Roberts is that he clearly understands the role of a judge: not to make policy or advocate an ideology, but to apply the law neutrally and fairly. When the court next reconsiders Roe v. Wade, will Chief Justice Roberts be able to put aside political considerations in deciding how to vote? The experience of Casey suggests that this is a tall order indeed, so thoroughly has Roe v. Wade politicized constitutional law.

Pat Answers
OK, we guessed wrong again, or so it would appear. Yesterday we said that Harry Reid's announcement that he'll vote against John Roberts's confirmation made it unlikely that the new chief would get more than a handful of Democratic votes. But now Sen. Patrick Leahy, the very liberal ranking Democrat on the Judiciary Committee, has announced that he'll back Roberts, the Associated Press reports:

Leahy said he still has some concerns about Roberts. "But in my judgment, in my experience, but especially in my conscience I find it is better to vote yes than no," he said. "Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda."

Also backing Roberts are at least three red-state Democrats: Max Baucus of Montana, Tim Johnson of South Dakota and Ben Nelson of Nebraska.

But lest you doubt Reid's abilities as a leader, he does have at least two followers. One is Ted Kennedy, who sits on the Judiciary Committee. The other is Kennedy's junior colleague, who sent an e-mail to supporters saying he was voting "no" in the "spirit of clarity and conviction."

Wouldn't it be nice if the Senate held a cloture vote on the nomination first? That way, the haughty, French-looking Massachusetts Democrat, who by the way served in Vietnam*, could vote for Roberts before voting against him!

* John Kerry.

Two Cheers for Al Gore
A reader calls our attention to this Associated Press story we'd missed from the week before last:

Al Gore helped airlift some 270 Katrina evacuees on two private charters from New Orleans, acting at the urging of a doctor who saved the life of the former vice president's son.

Gore criticized the Bush administration's slow response to Katrina in a speech Friday in San Francisco, but refused to be interviewed about the mercy missions he financed and flew on Sept. 3 and 4.

However, Dr. Anderson Spickard, who is Gore's personal physician and accompanied him on the flights, said: "Gore told me he wanted to do this because like all of us he wanted to seize the opportunity to do what one guy can do, given the assets that he has."

We've made fun of Gore for his "global warming" gobbledygook, but give credit where due: It's good to see a failed presidential candidate actually doing something worthwhile instead of just carping.

The Enemy Within?
The Harvard Crimson reports that Harvard Law School plans to cooperate with military recruiters this fall after being threatened with a loss of federal funds. The military does not allow homosexuals to serve openly, and Harvard, like many universities, thinks that this situation absolutely requires a really futile and stupid gesture be done on somebody's part--hence the restriction on recruiters, ROTC, etc.

But the Crimson notes that Harvard hopes to escape the requirement that it cooperate with the military:

University President Lawrence H. Summers said in a statement [Tuesday night] that Harvard will file a friend-of-the-court brief [today] urging the Supreme Court to invalidate the Solomon Amendment, the statute passed by Congress in 1994 that allows the secretary of defense to block federal funds to universities that deny military recruiters "equal access" to campuses.

"The Law School and the University share a deep and enduring commitment to the principles of nondiscrimination and equal opportunity for all persons," Summers said.

Meanwhile, GayPatriot.net has a rather gruesome photo of an Iranian man who has been flogged for being gay. At Harvard, though, the U.S. military is the real enemy of equality.

Wage Slaves for Davis-Bacon
Here's an amusing follow-up to yesterday's item about Josh Marshall's soporific campaign for the Davis-Bacon Act, a law that, as the Cato Institute notes, "was passed by Congress in 1931 with the intent of favoring white workers who belonged to white-only unions over non-unionized black workers."

Marshall offers some advice to readers who're trying to determine where their congressmen stand:

The folks [in congressional offices] who field phone calls from the public are often interns or new hires working for more or less dismal wages. They are often under instructions not to get into conversations about what their boss's position on an issue probably is until the press or communications folks have put together a release or some definitive statement.

This doesn't change the essential calculus of the importance or utility of trying to get the person who represents you to tell you where they [sic] stand on a key issue. But it is a good reason, as I'm sure you already are, to be polite and courteous with the person on the other end of the phone because their [sic] hands are often tied in terms of what they're [sic] allowed to say.

So, briefly, be nice.

Here's Marshall, tribune of the workingman, who himself hires interns at no pay, urging his readers to create more work for folks whose wages are "dismal" or nonexistent. And all he has to say on behalf of the exploited Capitol Hill wage slaves is "be nice."

Hey, let 'em eat cake, Josh!

A View From Belgium
This morning we received an e-mail from Willy Andreina, who writes to us from Belgium:

Well indeed John Kerry served in Vietnam, but nobody seems to know where W. Bush served and you Americans are in big trouble since nothing seems to be going right.

When I see that the "richest country in the world" with also the biggest debts has to beg for help and has to loan again to help its Katrina victims because it spends about 250 billion US $ on an unnecessary and illegal war and some 500 billion US $ on arms and defence, which is half of the budget of the rest of the world combined, and doesn't have any money left to help its citizens after a hurricane I don't think you are on the right pad. And the "and may God continue to bless America," Bush asks after each speech doesn't seem to work very well since He is sending an other category 4 hurricane in you direction. Perhaps God is fed up with all the stupidity's that Bush is doing to the world and so should be the Americans, I know the rest of the world certainly is. Why don't you print this reply, but I know you won't, because I never saw an article or response to your articles being printed when it is against Bush and his clan.

OK, Willy, we printed it--but we don't want to get in trouble, so please don't tell Bush and his clan!

Check Russell 317
"Man Who Drove Car Into Lake Still Sought"--headline, Dallas Morning News, Sept. 20

In New York, We Call It 'the Sun'
"Mysterious 'Ball of Fire' Seen in Fla. Skies"--headline, WKMG-TV Web site (Orlando), Sept. 21

Poll Rage
The past couple of days we've been getting e-mails, many of them angry and even obscenity-laced, generated by Media Matters, David Brock's slavishly partisan "watchdog" site. At issue is a comment we made on "Hannity & Colmes" Friday night (full video here): "I think we've already seen the [president's] poll numbers start to bounce back." Shortly thereafter, co-host Alan Colmes challenged this assertion, and we replied, "I've seen some polls in which the approval rating is almost as high as the disapproval."

Media Matters cites various poll results that suggest we were mistaken, and it's quite possible that we were. We haven't been paying close attention to the polls, and indeed one of our first comments on the show was, "This president is going to be out of office in 2009. He's never running for re-election again. I think all this talk about approval rating is a little silly at this stage of the game."

Now, it's possible that we were wrong on both counts: that Bush's approval ratings are down and it makes a big difference politically. But if that's true, then we, being generally sympathetic to President Bush, are merely being fatuous, and Bush's opponents should be amused if not delighted. The Angry Left has no reason to be mad at us, but we guess anger is the only emotion the Angry Left knows.

(Carol Muller helps compile Best of the Web Today. Thanks to Dan O'Shea, John Williamson, Brent Silver, Charlie Gaylord, Mark Van Der Molen, Frank Abbott, Michael Segal, Doug Wakeman, Tom Stealy, John Muller and John Dubas. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)

Today on OpinionJournal:

• Jalal Talabani: Thank you, America, for liberating my country. Please don't leave before the job is done.
• Manuel Miranda: Democratic smear campaigns may influence the White House's next Supreme Court pick.
• Claudia Rosett: Imagining the end of the "world" as we know it.
• Wendy Shalit: How did feminists end up in bed with Hugh Hefner?