Throughout the hearings, John Roberts refused to give straightforward answers to many questions about where he stands on important issues. One way that he avoided answering might not have been immediately obvious to everyone. On several occasions, when asked about past Supreme Court decisions, he said he has “no quarrel” with them. This may sound straightforward, but there’s more – or perhaps less -- to it than meets the eye.
We heard “no quarrel,” for example, when Senator Leahy asked him about Franklin v. Gwinnett County, the 1991 case in which Roberts argued that Title IX did not allow Christine Franklin, a high-school girl who was sexually abused by her teacher, to recover damages for intentional sex discrimination. As we noted here, Roberts’ argument would have left Franklin with no remedy whatsoever. When Leahy asked Roberts if he now concedes that the Court’s position was right and the government’s position wrong, Roberts said this:
Sen. Leahy: [M]y question is: Do you now accept that Justice White's position [in Franklin] was right and the government's position was wrong?
Roberts: I certainly accept the decision of the court -- the 9-0 decision, as you say -- as a binding precedent of the court. Again, I have no cause or agenda to revisit it or any quarrel with it.
Another time we heard this was in an exchange with Senator Feinstein about the right to privacy.
Sen. Feinstein: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause. Do you think that right of privacy that you're talking about there extends to single people, as well as married people?
Roberts: The courts held that in the Eisenstadt case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstadt.
Yet another time we heard this was in an exchange with Senator Feinstein on a case called Plyler v. Doe, involving the right of undocumented immigrant children to public education. Again, Roberts said, “I have no quarrel the court’s decision.”
This “I don’t have any quarrel” language sounded strangely familiar to us. Where have we heard this before? Oh, that’s right, Clarence Thomas’s confirmation hearings in 1991, where we heard it many times. One example was eerily similar to the exchange with Senator Feinstein this week on the Eisenstadt case:
Sen. Biden: And I ask you again: Do you think that single people have a right to privacy anchored in the liberty clause of the 14th amendment?
Thomas: The Court has found such a right of privacy to exist in Eisenstadt v. Baird, and I do not have a quarrel with that decision.
And we know this: when Clarence Thomas said he had “no quarrel” with a Supreme Court precedent, it did not mean he would be unwilling to vote to overrule it. For example, in his confirmation hearing, he said he had “no quarrel” with the “Lemon test” the Court uses to analyze cases under the Establishment Clause of the First Amendment (involving the establishment of religion), but just two years later he joined a dissent ridiculing the same test and saying it should not be applied. And when then-Senator DeConcini pressed him in the confirmation hearing about whether “no quarrel” meant that he actually agreed with a Court decision, he admitted he did not mean “I adopt it as mine.”
So when Judge Roberts says he has “no quarrel” with a decision, he is really telling us little or nothing about his position. It’s just another form of evasion -- and we do have a quarrel with that.
