Media misconstrue Roberts's 2003 appellate court hearing pledge to uphold “settled law” of Roe v. Wade as evidence he would uphold it on the Supreme Court

During initial coverage of President Bush's nomination of John G. Roberts Jr. to the Supreme Court, many media outlets have cited Roberts's pledge at his 2003 appellate court nomination hearing to “fully and faithfully apply” Roe v. Wade as the “settled law of the land” as evidence that he would vote to uphold the 1973 decision establishing a constitutional right to abortion if confirmed to the Supreme Court. But the suggestion that Roberts's previous description of Roe as “settled law” signals anything about how he would vote if confirmed to the highest court is incorrect. As an appellate court judge, the position to which he was “applying” in 2003 when he pledged to follow the law, Roberts is bound to adhere to Supreme Court precedent or face possible reversal on appeal. But as a Supreme Court justice, he would be in a position to vote to overturn Roe, or any other Supreme Court decision with which he disagreed, no matter how “settled.” In the words of The Wall Street Journal (subscription required), the upholding of binding precedent “is required of lower-court judges,” and therefore Roberts's comment “seems to leave open the possibility that he could vote to overturn Roe as a high-court justice.”

During MSNBC's July 19 coverage of Roberts's nomination, NBC News justice correspondent Pete Williams falsely reported that Roberts's confirmation hearing remark -- that Roe is “settled law” -- demonstrates that he is in line with the “six justices on this current Supreme Court” who believe that the decision should be upheld. Williams then speculated that abortion rights groups will therefore focus not on whether Roberts would vote to overturn Roe, but rather on his likely willingness “to accept nibbling away” at abortion rights:

WILLIAMS: He [Roberts] said in his confirmation hearings, Roe is “the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” So he says that he accepts it as the settled law of the land. Certainly, six justices on this current Supreme Court, counting Sandra Day O'Connor, view that as well. If he kept to that view, he would keep the fundamental holding on Roe the same. What worries abortion rights groups is that, while he may accept the fundamental holding of Roe, he might be more willing to accept nibbling away at the edges by states imposing more restrictions, parental notification, that kind of thing.

Similarly, several news reports on July 20 contrasted Roberts's 2003 pledge with a legal brief he helped file in 1991 on behalf of the first Bush administration stating that "Roe was wrongly decided and should be overruled." Setting them up in this manner suggests that there is a conflict between the two statements. For example, USA Today wrote that they were “two seemingly contradictory positions that Roberts took on Roe.” But regardless of whether the 1991 brief reflected Roberts's personal views or merely represented the views of his client, his 2003 statement does not indicate anything about 1) his personal view of Roe; 2) whether his view has changed since 1991; or 3) how he would vote on the matter if elevated to the Supreme Court.

The New York Times noted that Roberts co-wrote the legal brief, then added that “when pressed ... for his own views” at his 2003 hearing, he described Roe as settled law. The Associated Press and Fox News adopted a similar framework. During a July 19 “Fox News Alert,” national correspondent Steve Centanni reported that “abortion rights groups say he [Roberts] once suggested Roe v. Wade be overturned, although he has since called it the settled law of the land.”

Other news reports more accurately reported the limited significance of Roberts's description in 2003 of Roe as “settled law.” For example, on the July 19 edition of CNN's NewsNight with Aaron Brown, senior political correspondent Candy Crowley noted that Roberts's comment was “not definitive” because "[a]s an appellate court judge, Roberts's job is to uphold law. The Supreme Court can reconsider law."

While challenging White House press secretary Scott McClellan during a July 20 press briefing to explain why it is “unreasonable” to expect Roberts to be more “forthcoming” about his views on abortion, NBC News chief White House correspondent David Gregory noted that “as an appellate judge he [Roberts] is limited by what is the Supreme Court decision, but as a justice he would wield so much more power and have the authority, you know, to reverse 'settled law.' ” Similarly, the San Francisco Chronicle noted that Roberts's critics “say Democrats shouldn't accept those assurances from a Supreme Court nominee who would have the power to overrule high court precedents that he had to follow on the lower court.” Even NBC's Williams improved his description of Roberts's comment on the July 20 edition of MSNBC's Imus in the Morning, saying: “What I think the abortion-rights activists would question, though, is that as a lower court judge he [Roberts] has to abide by the Supreme Court precedents. As a Supreme Court justice, he is on his own.”

In response to a written question submitted by Sen. Joe Biden (D-DE) after his 2003 confirmation hearing, Roberts himself suggested the distinction between his personal views on Roe -- which would presumably affect his actions on the Supreme Court -- and his role as an appellate court judge:

The Supreme Court's decision in Roe is binding precedent, and if I were to be confirmed, as a circuit judge, I would be bound to follow it, regardless of any personal views. Nothing about my personal views would prevent me from doing so.