# Was Judge Roberts in the Federalist Society? Does it matter? **URL:** \ **Category:** Great Debates\ **Created:** [July 26, 2005, 3:48am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170 "2005-07-26T03:48:18Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 26, 2005, 5:39pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/21 "2005-07-26T17:39:37Z")
> [@boret](#): > > Another point of speculation out there is whether or not he is a member of Opus Dei. :eek: Cite? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 26, 2005, 5:45pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/22 "2005-07-26T17:45:58Z")
Right, it isn’t really important if he’s ever been a card-carrying member of anything; it matters what his views are and how he’d apply them. Clearly he’s highly sympathetic to the group and its ideals. And that’s the problem - does he have so reactionary a view of government’s proper role that he’d roll the calendar back all the way to the late 18th century and the (presumably divinely-inspired) Original Framing, and not simply to before the Civil War as the usual sort of today’s states-right activists would have it? I’d actually be relieved, in a way, to get a Bush nominee who’d be happy to stop at the Hoover Administration, as the more reasonable (it’s a relative term) stream of what passes for conservatives today would have it. Ask the questions and don’t accept weaseling. Lifetime appointments are too important. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 26, 2005, 5:48pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/23 "2005-07-26T17:48:27Z")
> [@boret](#): > > I don’t care either. Another point of speculation out there is whether or not he is a member of Opus Dei. Easy there, big fella. The Da Vinci Code was not, repeat not, a documentary. He’s not gonna show you any self-inflicted whip marks on his back, even if he has some. If you want to ask about the location of the Grail, though, go right ahead. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [July 26, 2005, 6:11pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/24 "2005-07-26T18:11:28Z")
> [@ElvisL1ves](#): > > Easy there, big fella. The Da Vinci Code was not, repeat not, a documentary. He’s not gonna show you any self-inflicted whip marks on his back, even if he has some. If you want to ask about the location of the Grail, though, go right ahead. I don’t understand your comments. If he’s a member of Opus Dei, that might be cause for some concern for some people, as OD is pretty darned extreme within the context of the Catholic Church. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 26, 2005, 6:17pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/25 "2005-07-26T18:17:04Z")
The Dan Brown version is, sure. The real version, though? ---
**Author:** ![boret](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@boret](https://boards.straightdope.com/u/boret)\ **Post date:** [July 26, 2005, 6:26pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/26 "2005-07-26T18:26:30Z")
> [@BrainGlutton](#): > > :eek: > > Cite? Do you want blog comments as a cite? I wasn’t asserting a fact - just an example to make my larger point that “stuff” is being thrown out there (“points of speculation”) as diversion and provocation. I’ll search the comments out if you insist though. > [@ElvisL1ves](#): > > Easy there, big fella. The Da Vinci Code was not, repeat not, a documentary. He’s not gonna show you any self-inflicted whip marks on his back, even if he has some. If you want to ask about the location of the Grail, though, go right ahead. See above. Also, I’m not a “fella”, strictly speaking, and I haven’t read The Da Vinci Code. 🙂 Seriously, is a mere mention of Opus Dei too wacky for intelligent discourse? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 26, 2005, 6:31pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/27 "2005-07-26T18:31:31Z")
If you haven’t read it, then don’t bother; trust me. I mentioned it only because I suspect that’s the only way most people who recognize the name are even aware of it. Do you have some specifics about the real Opus Dei, and Roberts’ attraction to it, that you’d like to get into? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 26, 2005, 6:51pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/28 "2005-07-26T18:51:28Z")
Interesting. I reviewed his testimony and questionnaire from the confirmation hearings for his appointment to the DC Circuit. Before I did, I was pretty sure he was a FS member. He didn’t list it among his memberships then. And nobody questioned him about it. Even though there was some discussion of the group in relation to other nominees. [Questionnaire and questioning by Senators](http://www.access.gpo.gov/congress/senate/pdf/108hrg/89324.pdf) (pp. 297-339; 443-461) (enormous pdf) [Later hearing](http://a257.g.akamaitech.net/7/257/2422/26jan20041230/www.access.gpo.gov/congress/senate/pdf/108hrg/92548.pdf) (even bigger pdf) ---
**Author:** ![boret](https://avatars.discourse-cdn.com/v4/letter/b/bcef8e/32.png) [@boret](https://boards.straightdope.com/u/boret)\ **Post date:** [July 26, 2005, 7:09pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/29 "2005-07-26T19:09:08Z")
> [@ElvisL1ves](#): > > If you haven’t read it, then don’t bother; trust me. I mentioned it only because I suspect that’s the only way most people who recognize the name are even aware of it. In addition to being female, I am a lapsed Catholic, with 12 years of Catholic schooling under my belt. So I didn’t need to read The Da Vinci Code to be aware of Opus Dei. > [@](#): > > Do you have some specifics about the real Opus Dei, and Roberts’ attraction to it, that you’d like to get into? No. If I had relevant specifics I would have mentioned them. I was hoping to avoid a detailed search by asking here. But since I was foolish enough to bring it up, perhaps I’ll do a search and get back to you if I find anything relevant. Fair enough? The blog comments mentioned that he belonged to a church with ties to Opus Dei. I didn’t fact-check that, and I’m not even sure it would be relevant to Roberts specifically. Would it? Just a curiousity, for me. Speculation tends to run rampant when people act cagey. As I said before, I believe that is the overall strategy here. The greater concerns probably lie elsewhere. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 26, 2005, 7:25pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/30 "2005-07-26T19:25:35Z")
> [@BrainGlutton](#): > > [The 9th] amendment **is** an empty vessel in the sense that no important constitutional decision has ever been based on it. I mean “empty vessel” in the sense that they construe it in such a way as to have no practical effect. The [ninth amendment](http://caselaw.lp.findlaw.com/data/constitution/amendment09/) is rendered void by circular Federalist Society logic. Start with the language of the amendment: > [@](#): > > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Why is that amendment there? In essence because the framers feared that in attempting to list all of the fundamental rights in a Bill of Rights they’d miss one. The 9th Amendment was a catch-all. In Madison’s words: > [@](#): > > It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. Members of the Federalist Society tend to argue that if a right were fundamental it would have been listed in the Bill of Rights. And if it’s not listed, we have no basis for delineating the right. By this logic, they reach the exact opposite result of that desired by the framers, rendering the Bill of Rights a closed list to which nothing may be added. Most members of the Federalist Society have never met an unenumerated right they would recognize, including the right of privacy delineated in [Griswold v. Connecticut](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=381&invol=479) and [Roe v. Wade](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=113). ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 1:28am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/31 "2005-07-27T01:28:19Z")
> [@spoke-](#): > > I mean “empty vessel” in the sense that they construe it in such a way as to have no practical effect. The ninth amendment is rendered void by circular Federalist Society logic. _sigh_ I can’t believe I’m recycling this already-recycled post twice in the same day, but here goes: Your view of the Ninth Amendment, at least, is completely incorrect. The Ninth Amendment exists to prevent the argument that the existence of the Bill of Rights invalidates other legal sources of rights (e.g., statutory rights and state constitutional rights). It prevents, say, opponents of the Massachusetts gay marriage decision from arguing that the decision is invalid because the federal constitution’s enumeration of rights is exclusive. It is not itself a source of substantive rights. If you disagree with that last statement, I defy you to find one court opinion in the entire history of the United States that relies on the ninth amendment as the sole source of a substantive right. (“Penumbras” that emanate from multiple constitutional amendments don’t count, since the substance comes the other amendments listed). We’ve discussed this point many times. Among other places, it’s buried in these threads: [Rights? What’s a Right?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=194286) [Is Scalia Nuts?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=170905) [Supreme Court hears challenge to Texas Sodomy Ban](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172810) [Conservative dopers vs. gay sex decision](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=193835) [Democrats oppose Hispanic judge: “he’s too competent!”](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=159876) [Strict constructionists: How about adding a constitutional “right to privacy”](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=182770) [A moment of your time, please, Justice Scalia](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=219203) [What do the Ninth and Tenth Amendments really mean?](http://boards.straightdope.com/sdmb/showthread.php?t=195525) [The State of the CIVIL Union Address](http://boards.straightdope.com/sdmb/showthread.php?t=235947) And not a 9th thread, but just for fun: [Dewey! Minty! Come a runnin’!!](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=176486) And just because I need a place to store links to other constitutional discussions: [Judicial activism is a good thing, unless you disagree! And how long have we had it?](http://boards.straightdope.com/sdmb/showthread.php?t=287438) [Pat Robertson claims federal judges are greater threat than al Qaeda/Nazi Germany](http://boards.straightdope.com/sdmb/showthread.php?t=314828) [Sean Hannity and listeners, a confederacy of hypocrites](http://boards.straightdope.com/sdmb/showthread.php?t=309947) > [@spoke-](#): > > Members of the Federalist Society tend to argue that if a right were fundamental it would have been listed in the Bill of Rights. And if it’s not listed, we have no basis for delineating the right. By this logic, they reach the exact opposite result of that desired by the framers, rendering the Bill of Rights a closed list to which nothing may be added. You fail to grasp the argument. If a right isn’t in the federal constitution, then someone looking to vindicate that right must look to a legal source other than the federal constitution. That source can be a state constitution, a treaty, a federal or state statute or regulation, or some other source entirely. No federalist of which I am aware claims that if a right isn’t listed in the constitution, then that right doesn’t exist. They only claim it doesn’t exist _as a matter of federal constitutional law_, and that a claimant must look to some other source to vindicate that right. Which is exactly what the ninth amendment is designed for: it prevents someone from claiming that the enumeration of rights in the federal constituition cuts off their remedies flowing from, say, their state constitution. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 27, 2005, 1:51am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/32 "2005-07-27T01:51:20Z")
> [@Dewey Cheatem Undhow](#): > > Which is exactly what the ninth amendment is designed for: it prevents someone from claiming that the enumeration of rights in the federal constituition cuts off their remedies flowing from, say, their state constitution. You make that sound factual, as if all legal eagles agree with that interpretation of the Ninth. Do you truly believe that to be the case? ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 27, 2005, 2:07am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/33 "2005-07-27T02:07:09Z")
I actually meant to also include this portion of your post with my question, and wanted to make that clear in case it had a bearing on your response: > [@](#): > > You fail to grasp the argument. If a right isn’t in the federal constitution, then someone looking to vindicate that right must look to a legal source other than the federal constitution. That source can be a state constitution, a treaty, a federal or state statute or regulation, or some other source entirely. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 27, 2005, 3:02am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/34 "2005-07-27T03:02:12Z")
> [@DMC](#): > > You make that sound factual, as if all legal eagles agree with that interpretation of the Ninth. Do you truly believe that to be the case? Find me a judicial opinion finding a substantive right solely in the ninth amendment. Otherwise, yes. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 27, 2005, 3:21am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/35 "2005-07-27T03:21:13Z")
I’ve suspected since the beginning that the reason Roberts can presently look so good to both NY Times op-ed writers and fundie nutjobs, a truly miraculous feat, is because Joe Public knows far less about him than BushCo and sundry rightist Beltway insiders do. This remains nothing more than suspicion, of course. However, the apparent need to have a “senior moment” about his fraternal activities, coupled with the “attorney-client privilege” dodge BushCo is using now to keep some documents under wraps, makes me a Hell of a lot more suspicious than I was before. Yes, it does matter, because obviously there’s something there somebody wants hidden. My guess is it pertains to Roberts’ personal feelings on abortion, some explicitly-worded document(s) composed while with Bush 41 that might give considerable insight not only to his desires, but how they might affect his judicial philosophy. It’s also my guess that there’s a paper trail in some file in the Federalist Society’s archives that might even indicate it’s a “pet goal”, if you will, of the Society to see **Roe v Wade** overturned, it being the nastiest example of Judicial Activism ever, and all. Again, just a WAG. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [July 27, 2005, 3:43am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/36 "2005-07-27T03:43:38Z")
Why this obsession over Roe v Wade? Here’s the deal: The Republicans want to make it look like they’ll overturn RvW, but that’s thelast thing they actually want to happen. Nothing would ensure the ascendancy of the Democrats at every level of government (state and federal) than the overtuning of RvW. Do you think the Repulbican power brokers are that stupid? Hell, if the Democrats were smart, they’d be the ones looking to have RvW overturned. If Roe were overturned by the Republicans, we’d have to thorw out the term “Pyrhric Victory” in favor of"Roic Victory". ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 27, 2005, 3:50am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/37 "2005-07-27T03:50:44Z")
What you say makes perfect sense, except I think the current crop of Republicans may be willing take the plunge, because Bush has done all but erect a giant neon crucifix on the White House roof and he’s managed to pull it off while solidifying a remarkably loyal base of staunch conservatives, conservatives who ought to be appalled by some of his behavior if they take the term seriously. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [July 27, 2005, 8:25am UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/38 "2005-07-27T08:25:34Z")
> [@Dewey Cheatem Undhow](#): > > Find me a judicial opinion finding a substantive right solely in the ninth amendment. That doesn’t answer my question. I asked if the opinion of legal scholars was fully in agreement with your statemetns, as you presented them, since you presented them in a factual manner. > [@](#): > > Otherwise, yes. Does that “yes” stand alone, or are you going to retract that, given that my question wasn’t a conditional one. You certainly seem to want us to believe that no one believes in “inherent rights” (unless by “legal sources”, you meant to include “natural rights”), when we both know that there are plenty of people on both sides of this debate. I’ll be the first to agree that it’s difficult to enumerate exactly what those “natural rights” might be, but that doesn’t mean that no one thinks they exist. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 1:44pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/39 "2005-07-27T13:44:37Z")
> [@Dewey Cheatem Undhow](#): > > Find me a judicial opinion finding a substantive right solely in the ninth amendment. Otherwise, yes. Find me a Federalist Society member who believes in any right not specifically listed in the Bill of Rights. Madison’s words are plain: > [@](#): > > It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. The Bill of Rights is emphatically NOT an exhaustive list, tortuous Federalist Society arguments to the contrary notwithstanding… ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [July 27, 2005, 1:53pm UTC](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170/40 "2005-07-27T13:53:39Z")
> [@Dewey Cheatem Undhow](#): > > Your view of the Ninth Amendment, at least, is completely incorrect. And your comprehension of my position is completely absent. I did not say the 9th Amendment is a source of rights. It is instead **evidence that unenumerated rights exist**. The framers were not so foolish as to believe themselves capable of exhaustively listing every right the people retain. They implicitly left it within the power of the judiciary to determine unenumerated rights. [Previous page](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170.md?page=1) [Next page](https://boards.straightdope.com/t/was-judge-roberts-in-the-federalist-society-does-it-matter/314170.md?page=3)