Roberts v. The Future?

Jeffrey Rosen has a very long, provocative article in today’s New York Time Magazine that is worth reading — if you have the time.

Based on the insight that “The Future Is Not The Present” (the title of his first section heading), something that will come as less of a surprise to historians than to others, Rosen interviewed a bunch of leading edge scientists and legal scholars to come up with a prediction of constitutional issues of the future. He believes it would be more useful to get a sense of John Roberts’s views on these future issues than to try to pry out of him his views on the well-plowed ground of Roe v. Wade, etc. “[I]n the case of Supreme Court nominees,” he writes, “looking backward may not be the most reliable way to predict the future.”

In an attempt to predict the future more reliably, Rosen lays out possible, or maybe probable, controversies over a wide terrain that often sounds like science fiction, addressing such topics as “Brain Fingerprinting and the Future of Privacy Rights” and “Genetic Screening and the Future of Personal Autonomy.”

The science in all these areas is fascinating, and Rosen seems to describe it well (but what do I know?). The relation of the science to what ought to be before the Supreme Court, however, is more problematical. Rosen’s discussion genetic screening provides a good example of both the strength and and the problem. In one place he mentions that “a Republican legislator in Maine introduced a bill to ban abortions based on the sexual orientation of the unborn child,” and he asks how the Supreme Court would likely view this issue.

In 1992, when it reaffirmed Roe in Planned Parenthood v. Casey, the court held that the Constitution protects a right of personal autonomy. The scope of this right would be at the heart of disputes over genetic technologies in the future. If the Supreme Court agreed to hear a constitutional challenge to a law banning sex selection, for example, the conservative justices might find themselves divided. Justices like Antonin Scalia, a states-rights conservative who advocates deference to local legislatures, might vote to uphold the law, while a libertarian conservative like Anthony Kennedy, who argues that the Constitution protects a broad sphere of autonomy over intimate and personal decisions, might vote to overturn it.

At the moment, the Kennedy-style vision of personal autonomy is most vigorously defended among legal scholars by a law professor at the University of Texas at Austin named John Robertson. He argues that the right to have offspring or not, recognized in Roe v. Wade, necessarily entails some right to select the characteristics of the offspring. ”The liberal notion of autonomy over reproduction includes some right of selectivity that logically could extend to nonmedical traits,” Robertson told me, ”but how far has to be sorted out by the Supreme Court and the country.”

Should the Supreme Court try to draw the line between those traits that parents can select for and those traits they can’t?

It seems to me that the first of those questions — whether it is the Supreme Court that should be drawing any lines that must drawn — is the more fundamental question.

Or take “reproductive cloning” (no, you take it), which could allow same-sex couples “to produce [in a lab?] children that are genetically related to both parents.” Here’s how:

scientists would create a cloned embryo from one man, derive stem cells from the embryo and then coax the stem cells (which can be used to create any tissue in the body) into a human ovum. The ovum would then be fertilized by the sperm of the other man, conceiving an embryo that would be implanted in a surrogate’s womb.

What if, in response, Congress passed a law saying “that children shall be conceived only through the union of egg and sperm taken from an adult human”?

A bill along these lines would clash with the broad vision of personal autonomy endorsed by Kennedy on the current Supreme Court. In the future, however, supporters of laws banning reproductive cloning might be able to call on conservative judges and legal scholars to make arguments for upholding the legislation. Just as some liberals insist that the constitutional right of personal autonomy guarantees a right of genetic selection, some social conservatives are increasingly countering that the constitutional guarantee of equal protection of the laws should be interpreted to protect embryos from the moment of conception — including those that are destroyed in the process of generating stem cells.

What I find most interesting here is not the science, or the question of where various “lines” must drawn, but the question of whether “personal autonomy” is in fact as much of a constitutional right as “equal protection.” Rosen glides rather too quickly and easily over this rather fundamental question. He mentions that the Court has recognized “personal autonomy” and that Justice Kennedy “argues that the Constitution protects a broad sphere of autonomy over intimate and personal decisions.”

Yes, but how good is the argument? Does it matter that the Constitution actually says something, in real words, about “equal protection” but not about “personal autonomy”? At the risk of being called a rigid textualist (I’ve been called worse), it seems to me that equal protection is much more firmly rooted in the text, structure, and history of the Constitution than “personal autonomy,” which must be derived from “penumbras, formed by emanations” from the Bill of Rights (if it in fact derives from anything having to do with the written Constitution at all).

I found Rosen’s treatment of this issue, in short, unsatisfying, but not unfair. For example, he does provide some balance:

I spoke recently with Robert P. George, an influential conservative legal philosopher at Princeton, about the possibility that this view [that viewing embryos as persons might block the creation of stem cells for research] might persuade a future court. ”If, in fact, the embryo is, as I think the science shows it is, a full living member of the species homo sapiens,” he said, ”and if by the word ‘persons’ the framers of the 14th Amendment meant to protect full living members of the species homo sapiens, then plainly, the creation of embryos for destruction would be a violation of their equal protection. That would be straightforward, and I would see no room around it.”

Again, I think the fundamental question has less to do with the nature of embryos than with the relative strengths of “personal autonomy” and “equal protection” as constitutional rights.

Indeed, the first five (online) pages of this ten page article are given over to potential controversies that implicate privacy rights, when those rights themselves are unclear and contested.

At one point, mentioning that couples in the future, noting that screening for low IQ is already permitted, my demand the right to screen for high IQ, Rosen concludes:

Rather than presuming to define the boundary between therapy and enhancement on the basis of its understanding of privacy doctrine, the court might serve the country better by leaving that agonizing decision — which has confounded our leading scientists and philosophers — to democratically accountable legislatures.

This wise solution would seem to apply to a number of the scenarios that Rosen discusses, not just this one.

Despite the fact that I would have preferred Rosen to spend more time on Constitutional interpretation and less on the futuristic science that he suspects will generate the future’s legal controversies, I do have to say the science was interesting, and Rosen was generally fair in his presentation of likely liberal and conservative arguments, noting where the future arguments might lead to strange bedfellows (with, for example, both feminists and conservatives opposing sex selection, although for different reasons.)

That is not to say, however, that there was absolutely no liberal bias — the article appeared, after all, in the New York Times. For example, the title, “Roberts v. the Future,” implies a conflict that certainly is not demonstrated and may not exist; it could as easily, and accurately, be called “Liberals v. the Future.” In fairness to Rosen, however, it may have been editors and not he who supplied the title. That defense is not available, however, to Rosen’s observation, without comment, that

Arlen Specter, the Pennsylvania Republican and chairman of the Senate Judiciary Committee, has told Roberts that he intends to ask him about recent Supreme Court decisions narrowing Congress’s power to regulate interstate commerce.

Anyone less liberal, or more thoughtful, than Specter (and presumably Rosen) would reply that the Court has not narrowed Congress’s power to regulate interstate commerce. What it has done is to restrict Congress’s power to regulate interstate commerce to activities that actually affect interstate commerce. The fact that conservatives see a distinction here that is invisible to liberals is one of the biggest differences between them these days, nicely revealing their difference over the deference that is due to the written text of the Constitution.