Roberts and the abortion brief

The brief was sound legally, but it was nevertheless a brief in support of keeing a terrorist organization in operation.

NARAL has a TV spot up attacking John Roberts for an amicus brief he signed when he was Deputy Solicitor General. That brief opposed the use of an anti-Klan law to get at abortion-clinic protesters.

Factcheck.org says the ad is “false,”; NARAL defends itself via Bitch, Ph.D.

As far as I can tell, the only statement in the NARAL spot that is actually false is its implication that Robert’s ideology leads him to “excuse violence.” The ad also uses images of a later clinic bombing and the face and voice of one of the victims of that bombing, which might lead an unwary viewer to think that Roberts’s intervention had been on behalf of the bomber in that case, which it wasn’t.

But one of the defendants in the earlier case was in fact a previously convicted clinic-bomber, and the amicus was filed in support of Operation Rescue, hardly a peaceful protest movement. (Three years after the brief was filed, a civil jury in Chicago found that Operation Rescue was a racketeering enterprise, in a case that is once again making its way up to the Supreme Court.)

Eugene Volokh points out that the Court, by 6-3, upheld the position in the brief, and argues that therefore the brief can’t be said to have been outside the mainstream of legal thinking. Fair enough.

But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. The attorneys general of Virginia and New York both filed amici arguing that their states lacked the capacity to fight off Operation Rescue’s efforts.

The Solicitor General’s office was under no obligation to file an amicus in a civil lawsuit. Ask yourself whether the SG’s office would have intervened similarly – whatever the legal merits – in a case involving violent protesters against U.S. support of the Contras, or Earth First, or the Animal Liberation Front, or Al Sharpton’s shake-down crew. No, I don’t think so either.

If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.

By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts, along with the rest of the Bush I crew, was in effect backing the terrorists against their victims. That’s not “excusing” violence, but it’s not exactly opposing it, either.

And Roberts signed the brief, and delivered the oral argument. That seems to me to be a legitimate reason for Operation Rescue to support him, and for those who support abortion rights and oppose domestic terrorism to oppose him.

Update Volokh Conspirator Jim Lindgren disagrees, thoughtfully and courteously. I reply here, distinguishing the duty of an advocate on behalf of the United States from the duy of a judge.

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: Markarkleiman-at-gmail.com