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Boston Legal

The law according to Mitt.

During a Republican presidential forum in South Carolina on September 5, the conservative Princeton political philosopher Robert George asked the candidates a provocative question. George, the intellectual architect of the campaign against gay marriage and abortion rights, has long argued that Congress should declare war on the Supreme Court by passing a federal ban on abortion that clearly violates Roe v. Wade. Would the candidates be willing to sign such a ban—intentionally provoking a constitutional crisis? The first three candidates to answer—Michele Bachmann, Herman Cain, and Newt Gingrich—signaled, to varying degrees, that they would. (Ron Paul demurred on states’ rights grounds; Rick Perry was absent.) Then it was Mitt Romney’s turn.

Romney is ordinarily eager to prove his pro-life bona fides in order to reassure social conservatives who are deeply skeptical of him. They have reason to be: In 1994, when he was running for the Senate against Ted Kennedy, Romney declared that abortion “should be safe and legal” and that “we should sustain and support” Roe v. Wade. But, in the 2007 presidential campaign, Romney called his support for Roe the “defining mistake” of his life. At first, his position was that Roe should be overturned and the issue of abortion returned to the states. After he came under further pressure from pro-life activists, he went on to say that, if Roe were overturned, he would be “delighted” to sign a federal ban criminalizing abortion in nearly all circumstances—even in states that wanted to allow it.

But, when presented with George’s proposal, Romney balked. Signing a federal ban on abortion before Roe v. Wade was overturned would essentially be a challenge to the Supreme Court’s power, recognized in Marbury v. Madison, to strike down unconstitutional laws. In other words, such a move would provoke a showdown between the president and the Supreme Court over who has the final authority to interpret the Constitution. Romney immediately recognized the stakes. “That would create obviously a constitutional crisis,” he said. “That’s not something I would precipitate.” Given that Romney so rarely separates himself from the Republican pack, his answer might lead one to wonder: When it comes to the law, just how conservative is Mitt Romney?  

AS GOVERNOR of Massachusetts, Romney’s initial approach to judicial nominations couldn’t have been less ideological. At the beginning of his term, in 2003, he created what he called the nation’s first blind, merit-based judicial selection process. This required the state panel that nominates judges to conduct an initial review of the candidates without knowing their names. And the system, consistent with Romney’s data-driven background as a management consultant, appeared to work: In a 2005 review of Romney’s nominees, The Boston Globe found no partisan slant whatsoever.

But, not for the first time, Romney reversed his position under political pressure. The Republican base, of course, wants a candidate who cares intensely about judicial nominations, and in 2006, as he prepared to run for president, Romney changed the rules in an apparent bid to shore up his conservative credentials. The new system limited the powers of the review board and increased his own role in evaluating candidates. In the end, Romney’s six nominees to the Massachusetts appeals court under the new system were conservatives—though well-qualified and mainstream ones, such as Gary Katzmann, a former U.S. attorney in Massachusetts and a Harvard lecturer, and Andrew Grainger, former president of the New England Legal Foundation, a pro-property-rights think tank.

Does that mean that a President Romney would appoint moderate conservatives to the bench? It seems unlikely, because Supreme Court nominees are drawn from such an ideologically constrained pool. Romney has repeatedly promised that he would appoint justices like John Roberts and Samuel Alito, and, despite his flip-flops and inconsistencies, there’s no reason to doubt him on that point. The members of Romney’s judicial advisory committee—chaired by Judge Robert Bork, Harvard Professor Mary Ann Glendon, and Washington business lawyer Richard Wiley—are pillars of the pro-business, pro-executive-power wing of legal conservatism, the same one exemplified by Roberts and Alito. (As it happens, I have a doppelgänger, another Jeffrey Rosen—no relation—who also serves on Romney’s advisory committee.)

Perhaps the most useful way to think about Romney’s constitutional views is that he is almost always willing to go to the limits of mainstream Republican legal discourse, but no further. This tendency is encapsulated by his position on the constitutionality of the health care mandate. During a debate in August, Romney argued that President Obama’s federal health care mandate is unconstitutional, but his own very similar mandate in Massachusetts was not. His reasoning rested on an argument about federalism. Under the Tenth Amendment, Romney pointed out, all powers that aren’t granted to the federal government are reserved for the states. In this case, he went on, the federal government lacks the power to enforce a health care mandate because the Commerce clause only authorizes Congress to regulate interstate commerce, not to mandate the purchase of goods. By contrast, Romney said, the power to mandate the purchase of goods was authorized by the Massachusetts constitution. That wasn’t enough for Bachmann, who insisted that any health care mandate was unconstitutional, whether imposed by the states or the federal government.

You could say that it’s encouraging to see Romney refusing to go as far as Bachmann. On the other hand, his vision of the Commerce clause is itself extremely conservative. Moreover, in the end, it probably doesn’t much matter that Romney’s judicial philosophy is slightly less extreme than Bachmann’s or Perry’s. Because the Supreme Court is currently divided 5-4 on the most contested issues in American life, any conservative justice that any Republican president appoints will be ready to overturn Roe v. Wade, to undo decades of anti-discrimination law, to deliver the coup de grâce to affirmative action, and to broaden the constitutional rights of corporations. (“Corporations are people, my friend!” Romney told a heckler on the campaign trail, in what was perhaps his most heartfelt constitutional pronouncement to date.) Romney may be the least radical Republican candidate on constitutional issues, but his election could nevertheless transform the Supreme Court in precisely the way that liberals have long feared.           

Jeffrey Rosen is legal affairs editor of The New Republic. This article appeared in the November 17, 2011, issue of the magazine.