Roberts and Bray revisited

Judges (ideally) rule accoring to the law. But advocates take sides, and can justly be held accountable when they choose to side with terrorists.

Last week, a post in this space supported NARAL’s criticism of Judge Roberts for the amicus in Bray, arguing that the decision to file that amicus reflected a deliberate decision by the Bush I administration to support the national movement, of which Operation Rescue was an important element, to shut down abortion clinics by force, intimidation, and violence.

Jim Lindgren of the Volokh Conspiracy points out that Justices Breyer and Ginsburg joined in ruling for some of the same defendants, including Operation Rescue, in another case (NOW v. Scheidler), and reasons that if it would be wrong — as it surely would — to characterize Breyer and Ginsburg as having sided with perpetrators of domestic terrorism, then it must be equally wrong to say the same of Judge Roberts for having signed the brief in the Bray case.

But the duty of an advocate on behalf of the government is not the same as the duty of a judge. Of course a judge must rule according to the law as he or she understands it. But the decision to bring the authority of the Solicitor General’s office to bear on a case by filing an amicus is a political as well as a legal act, and it can appropriately be criticized on political as well as legal grounds.

My original post acknowledged Eugene Volokh’s point that the reasoning in the brief Roberts signed was not outrageous in legal terms: after all, it prevailed before the Supreme Court by a 6-3 margin. That post did not say, or imply, that the majority justices in that case were supporting terrorism; I don’t think they were. But those who filed the brief — and, in Roberts’s case, made the oral argument — were taking sides between the victims and the perpetrators of a terrorist campaign, and were choosing the side of the perpetrators.

Note that Lindgren agrees with me in characterizing some of Operation Rescue’s actions as terroristic. Others have pointed out to me by email that the actions dealt with in Bray didn’t involve violence against persons, but rather massive disruption and some property destruction.

My understanding is that Operation Rescue had a non-violent public face, dealt with in Bray, and a violent covert face, dealt with in Scheidler. Many of the OR demonstrators didn’t use violence (except insofar as blocking access to medical care is inherently violent), or approve of it. But that didn’t make the contribution of the non-violent wing to the combined plan of attack on the clinics any less important, or change the fact that the overall effort intended to, and succeeded in, causing fear.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: