A caller to C-SPAN’s Washington Journal said that Roberts should be required to state his views on the case. As a general matter, we agree. But [Charles]Lane expressed a different view—a familiar view which has never seemed to make any real sense to us:

LANE (9/12/05): Well, the dilemma of this situation is that everybody wants to know this, everybody wants to know about it, and yet if Judge Roberts were to declare flatly at his hearing, “I would vote to overturn Roe. v. Wade,” the decision that established, or recognized, the constitutional right to choose abortion, he would then be in a position where he might have to recuse if such a case came to the Court later on because the person bringing the case could sday, “He’s already said how he’ll vote.” So in a way, Judge Roberts, just like many others who have come before the Court, face that essential dilemma.

But where’s the dilemma? Surely, Roberts knows whether he thinks Roe was correctly decided. If he thinks it was wrongly decided, he must know, as a general matter, what he thinks the decision should stand as a matter of “settled law.” (Indeed, he called Roe “settled law” in his confirmation hearing for the District Court.) Would Roberts have to recuse later on if he said what he thought about Roe? We can’t imagine why. As matters stand, sitting Justices like Scalia and Thomas have openly said, in prior rulings, what they think of Roe v. Wade; indeed, in a January 30 Post profile, Lane himself described Scalia as “an opponent of the 1973 Roe v. Wade decision that established a constitutional right to abortion.” Does anyone think that Scalia’s prior statements would force him to recuse in the future? The notion is completely absurd—and yet the logic is widely applied to Roberts, as Lane does above.

"Let me explain very briefly why. It's because if these questions
come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court - not on the basis of any commitments during the confirmation process."

My views on this matter are unchanged from those I set forth in my separate opinions in Webster v. Reproductive Health Services, 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and concurring in judgment), and Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520 (1990) (Akron II) (Scalia, J., concurring). The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, "where reasonable people disagree the government can adopt one position or the other." Ante, at 8. The Court is correct in adding the qualification that this "assumes a state of affairs in which the choice does not intrude upon a protected liberty," ante, at 9--but the crucial part of that qualification is the penultimate word. A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for example--which entire societies of reasonable people disagree with--intrude upon men and women's liberty to marry and live with one another. But bigamy happens not to be a liberty specially "protected" by the Constitution.