Apropos of Dahlia Lithwick's amusing-as-always piece about her Roe-talker versus nontalker survey, I must say that I don't personally find the claim of any given lawyer that "No one knows my views on Roe" to be inherently ludicrous or implausible. It really depends what one means by "views on Roe." I could probably guess with reasonable accuracy whether most of my lawyer acquaintances would like to see Roe reaffirmed or overruled, but that doesn't mean I've heard any of them expound at length about what they think of Roe in a jurisprudential sense - that is, not just its result, but its reasoning. Has anyone, really, outside of gunner-heavy con law classes or a particularly earnest faculty lounge? Further, the whole issue of Roe has become swathed in such elaborate code language that it's possible to signal that one is generally sympatico with Roe-overturners without dwelling too much on the gory details; just go on a lot about strict constructionism, or activist judges, or how Dred Scott was a really bad decision.
The truly absurd dodge for the potential Supreme Court justice is the Clarence Thomas-style "I have no opinion on Roe" - one of those lies so shameless that there's really no way to challenge it. We seem to have evolved from that to the Roberts/Miers/Alito strain of evasion, which amounts pretty much to, "You bet I have an opinion on Roe, but I'm not saying what it is!" (Of course, the ill-timed resurfacing of one's early efforts to curry favor with Ed Meese may complicate this strategy.) I question whether any principle of judicial ethics really mandates this response. (By way of comparison, it seems to be OK to talk about Griswold, but is it really possible to say definitively that the issues Griswold raised will never again come before the court?) At the very least, however, it seems a modest advance in honesty.
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