Three decades ago, Muhammad Ali stepped into a boxing ring with the younger, stronger heavyweight champion George Foreman. For six rounds, Ali leaned on the ropes and took every punch Foreman threw. Finally, in the seventh round, Ali sprung to life against his exhausted foe, rapidly landing punch after punch. In the eighth round, he knocked Foreman out, reclaiming the heavyweight crown.
Ali later said he “rope-a-doped” Foreman. Since then the term has entered the political lexicon to describe a strategy of keeping your head down, while waiting for the opportune moment to ferociously counter-attack your philosophical adversary.
During his confirmation hearings this week, chief justice nominee John Roberts rope-a-doped liberals on the Senate Judiciary Committee. They threw punch after frenzied punch at him. None solidly connected.
Sparring With Specter
The sparring proved Robert is as brilliant and knowledgeable as he was reputed to be.
The match started with liberal Judiciary Chairman Arlen Specter (R.-Pa.) going for a first-round KO of his own President’s nominee. Specter came out swinging on Roe v. Wade, the 1973 decision that declared abortion a constitutional right, and tried to corner Roberts on the question of stare decisis—the doctrine that holds precedents established by previous Supreme Court decisions should generally be left to stand.
Liberals, ironically, have become great champions of this superficially conservative idea. That is because they have already greatly succeeded, through liberal activism by the Supreme Court, in twisting the meaning of the Constitution to achieve policy aims they could never hope to achieve in the elected branches of government, where voters can hold them accountable and remove them from power.
Over the last 60 years, activist liberals on the Supreme Court have changed the meaning of the Establishment Clause, which prohibits the government from establishing a state religion, so that it now is construed to prohibit voluntary prayer in public schools and posting the Ten Commandments in public buildings. They have changed the meaning of “freedom of speech,” so that some forms of political communication can be curtailed in an election campaign but virtual child pornography cannot be curtailed on the Internet. They have changed the meaning of the Commerce Clause, which says Congress can regulate commerce “among the several states,” so that Congress can regulate non-commercial activity within one state. They have changed the meaning of the Takings Clause, which says government may not take private property for “public use” without providing the owner with just compensation to mean government can take one citizen’s property and give it to another. They have changed the meaning of the Equal Protection Clause, which guarantees all persons equal protection of the laws, so that it justifies state colleges guaranteeing special privileges to some.
And, of course, they abused the word “liberty” in the 14th Amendment to create a “right to privacy” that encompasses a “right” to abortion and a “right” to same-sex sodomy.
If stare decisis were to become the governing doctrine of a Roberts court, all of these malignant precedents would govern America forever.
Roberts, to be sure, conceded to the committee that paying deference to precedent is important. He refused, however, to raise it to an absolute doctrine, and clearly left open the door to reversing major “settled” decisions—including Roe v. Wade.
Roberts rooted his own vision of stare decisis not in the writings of any modern judge, but in Federalist No. 78, written by Alexander Hamilton. He quoted it, verbatim, from memory: “To avoid an arbitrary discretion in judges, they need to be bound down by rules and precedents.”
Some of Roberts’ stealth-candidate testimony on Roe—especially when viewed in isolation rather than in the context of all that he said—will be rightfully troubling to conservatives who have worked for years to elect a Republican President with a Republican Senate majority precisely so that the Supreme Court can be taken back from the liberal activists. Specter, for example, confronted Roberts with testimony from his 2003 appellate-court confirmation hearing, where Roberts said, “Roe is the settled law of the land.” “Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?” asked Specter.
Roberts said: “Well, beyond that, it’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the  Casey case [which upheld Roe], explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.”
Precedents Can Be Reversed
But then Roberts explained that even “settled precedents of the court” can merit reversal.
“I do think it is a jolt to the legal system when you overrule a precedent,” said Roberts. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments….If overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability.”
But, Roberts concluded, “[T]he principles of stare decisis recognize that there are situations when that’s a price that has to be paid.”
Liberals left the hearings fearing Roberts might be willing to pay that price in reversing some of their most cherished precedents—including Roe. Conservatives left hopeful—but not certain—that the liberal fears might be right.
Roberts made a telling statement in response to antagonistic questioning by Sen. Dick Durbin (D.-Ill.). “Somebody asked me,” said Roberts, “are you going to be on the side of the little guy?…But, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution.”
That’s not what Durbin wanted to hear. But it’s the truth. And, we hope, a preview of the unvarnished John Roberts we will discover when he is confirmed.
In the Judiciary Committee, Roberts demonstrated that when liberals attack, he can float like a butterfly. On the court, he will need to sting like a bee.