Examining The Layers Of Law

Chief Justice nominee John Roberts gestures while testifies on Capitol in Washington, Tuesday, Sept. 13, 2005, at his confirmation hearing before the Senate Judiciary Committee. (AP Photo/Pablo Martinez Monsivais) AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


The law comes to us in layers, from the general to the specific, from broad sweeping concepts that are almost universally accepted to pliable standards that often are subject to debate to nitty-gritty rules that mark the battle lines in any given case.

Now that the public questioning of Supreme Court Chief Justice nominee John G. Roberts, Jr. is over, it's worth explaining how these various layers played into the Senate Judiciary Committee's work and how Committee Republicans and Roberts himself relied upon them to his great advantage.

Senate Democrats on the Committee wanted Roberts to share his views about those standards and rules — they wanted to get him to talk about the law at its roots, along the margins, where cases are decided and new law is made. They wanted him to get to at least the second layer of the law.

Senate Republicans on the Committee, on the other hand, were content to have Roberts talk mostly about the broader contours of the law, the surface-level ones marked by familiar grand phrases with which many Americans are comfortable. They were content to allow him to skim along the surface, the first layer of the law.

Neither side dared push Roberts too much to get down to the third layer — and rightly so. No judicial nominee ever should have to predict how he or she will rule in any particular case.

Every lawyer in America believes in the principle of stare decisis, for example, so it was absolutely inconsequential for the nominee to have made such a big deal about it. Likewise, his focus in his answers upon his stated reverence for the "rule of law" doesn't tell any lawyer or judge anything new or profound about his judicial philosophy.

Can you imagine any judge or lawyer coming before any legislative committee and expressing disdain for the "rule of law?" Of course not.

But as we saw during the Florida recount fiasco of 2000, the "rule of law" means many different things to many different people. This is surface-level stuff, enormously broad strokes, meaning so much that in this context it really means nothing at all.

So, for example, when Roberts mentioned that he believes that the Constitution includes a "right to privacy," Committee Democrats reasonably enough wanted him to go beyond that broad, universal concept to explain more precisely what that phrase really means to him. They quite rightly noted that conservative Supreme Court Justice Antonin Scalia's idea of the "right to privacy" is very different than what liberal Supreme Court Justice Ruth Bader Ginsburg's idea of the "right to privacy" is.

This is important because the "right to privacy" — whatever it means — is the foundation of the Court's abortion rights rulings and any other rulings that implicate the personal or intimate conduct or relations of the American people.

Most Committee Republicans, for their part, were happy to accept Roberts' recognition of a general "the right to privacy" in the Constitution. For them, this first-layer answer satisfied whatever obligation the nominee may have had to share his legal views and philosophies with the Congress before taking a seat on the High Court.

It allowed them, and the nominee, to say with straight faces that Roberts had been forthcoming about what kind of Justice he is likely to be for the next 30 years or so: a justice that recognizes privacy rights. It gave all of them political cover, you might say, to avoid having Roberts saying anything particularly controversial — or insightful.

  • Sean Alfano

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