NARAL's anti-Roberts smear

There's been no shortage of hoopla over NARAL's 30-second ad (video available in several formats here) trying to link Supreme Court nominee and then-government lawyer John Roberts' position in the Supreme Court case of Bray v. Alexandria Women's Health Clinic with abortion clinic bombers.  [UPDATE: NARAL has pulled the ad - see update below.]  Conservative groups are (predictably) outraged; some liberals and pro-choice activists are (less predictably) unhappy with the ad and have urged NARAL to pull it; factcheck.org has weighed in against the ad; and NARAL has responded to factcheck's claims with a lengthy explanation.  Factcheck's analysis (written by a guy who looks to be barely out of college and who didn't even transcribe the ad accurately) is actually pretty weak, and NARAL gets the better of the factual argument.

But facts aren't everything.  The tag line in the ad is this:

America can't afford a Justice whose ideology leads him to excuse violence against other Americans.

As a factual statement, of course, that sentence is unexceptionable - placing such a person on the Supreme Court would indeed be a bad idea.  But the ad's obvious implication - that John Roberts is such a person - strikes me as totally unfounded.  It certainly finds no support in the government's decision to weigh in on the Bray case, which is the only evidence NARAL offers in its ad. 

Despite NARAL's protestations to the contrary, the issue in Bray was indeed fairly technical: whether the first clause of 42 USC 1985(3) (a reconstruction-era civil rights statute also known as the "Ku Klux Act"), which bars conspiracies to "deprive ... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws," applied to certain abortion clinic blockades operated by Operation Rescue.  When the Bray case arose, prior cases had already established that section 1985(3), unlike most federal civil rights laws, reached purely private as well as state-sponsored conduct - but that such conduct had to be motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus."  The question was whether the conduct of the Bray defendants (Operation Rescue and certain individuals) had been shown to have been motivated in that way.

The answer to that question is not a simple one because the statute's language is somewhat vague, and prior cases had added non-textual glosses that were subject to interpretation.  The first Bush administration, through Roberts, argued that the answer was "no."  Six Justices (Rehnquist, White, Kennedy, Scalia, Souter, and Thomas) agreed that the answer was "no" (including two, Kennedy and Souter, who were part of the coalition upholding the core of Roe in Planned Parenthood v. Casey, as Eugene Volokh notes), and three (Stevens, O'Connor, and Blackmun) thought it was "yes."  (Souter also wanted to remand the case for more factfinding on a different issue that the government did not address.)  It's also worth noting that the trial court had found against Operation Rescue on state law trespass and nuisance claims as well as the federal civil rights claim, and the Supreme Court left those rulings undisturbed (rejecting the Bray defendants' request to invalidate them as well); the only immediate effect of the Court's ruling was to strike an award of attorney's fees, which was available under the federal claim but not the state law claims.

To me, anyway, the Government's position on the proper scope of section 1985(3) - whether or not you agree with it - has no connection to whether someone has an "ideology" that "excuses violence against other Americans."  First, Bray was not about an abortion clinic bombing (the NARAL ad never explicitly says it is, but again tries to obfuscate the issue by talking a lot about clinic bombings - one of the defendants was indeed a convicted clinic bomber, but that was not the incident at issue in the case).  Second, and more importantly, there is good evidence that Roberts does not "excuse" violence perpetrated by abortion protesters - Roberts himself stated to the Court in Bray (see p. 9) that "the United States appears in this case not to defend petitioners' tortious conduct, but to defend the proper interpretation of section 1985(3)."  Moreover, in 1986, Roberts drafted a letter regarding the possibility of pardons for persons convicted of violence in the course of abortion clinic protests which says, in part, "the President unequivocally condemns such acts of violence and believes that those responsible should be prosecuted to the full extent of the law.  No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals."  Seems to me the permissible inference from those two statements as to Roberts' views on "violence against other Americans" is far clearer than from Roberts' brief and argument in Bray, yet NARAL focuses exclusively on the latter and ignores the former.  Gee, I wonder why?

At the end of the day, implying that Roberts excuses violence committed by abortion clinic protesters based on his participation in the Bray case isn't much different from saying that the ACLU supports the views of the Nazis and racists whose free speech rights it routinely defends.  It's very, very tricky business to attribute a client's opinions or actions in general to the lawyer who represents that client on a specific matter, and it's often unfair to do so.  NARAL's ad is at best sloppy, at worst intentionally misleading, and is extremely unlikely to advance the debate in any meaningful way.

UPDATE: NARAL has sensibly decided to pull the ad, apparently after receiving a letter from Sen. Arlen Specter (R-Pa.), the chairman of the Judiciary Committee, asking them to do so.  Kudos to NARAL president Nancy Keenan for doing the right thing.