5 Things You Need to Know About Roberts

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2. Abortion is only one front in the privacy wars, but at Roberts' confirmation hearings, whether a privacy right exists will function mainly as code for whether an abortion right exists. Among liberals, a major defense of Roe v. Wade, the 1973 decision legalizing abortion, is that if it is overturned the destabilizing effect will be great, denying women a legal right they have had for 32 years. But to many conservatives the matter has never been settled as the Warren Court's original recognition of a constitutional right to privacy (in a 1965 case involving the use of contraception) provided the basis for Roe. Strict constructionists like Antonin Scalia and Thomas think the court was just plucking rights out of thin air when it perceived the right to privacy nestled in the Ninth and 14th amendments. (The Ninth says just because some rights are explicitly protected doesn't mean others don't exist; the 14th says people cannot be denied life, liberty or property without due process.) At one time Roberts appeared to agree. As a young Justice Department lawyer in 1981, he summarized a lecture in which the speaker "devotes a section to the so-called 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution." But this summer he told a Democratic Senator that it was hard to read the Constitution without getting some impression that the Founders were talking about privacy.

If Roberts really does think Roe was "wrongly decided," as he wrote in a 1990 Justice Department brief, Democrats want to know if he would be willing to throw it out or whether that would be too radical a reaction for his taste. Conservatives hope Roberts will line up with Chief Justice William Rehnquist, Scalia and Thomas in favor of overturning Roe, which would match the quartet--David Souter, Ruth Bader Ginsberg, Stephen Breyer and John Paul Stevens--that wants to maintain it, leaving Anthony Kennedy as the swing vote. While Roe might survive, such a lineup would probably ensure that the 2003 congressional ban on partial-birth abortion is upheld.

FORGET THE "HAPLESS TOAD ..."

3. Here is a classic tension: How much restraint should one branch of government show when it feels another is not showing enough? The Rehnquist Court holds the record for tossing out congressional statutes, often on the ground that Congress is muscling in on state turf. The argument rests on how one reads the Constitution's Commerce Clause, an omnibus notion that allows Congress to regulate interstate commerce but has frequently been used as an all-purpose regulatory vehicle. The high court has overturned a federal law that barred possession of a firearm within 1,000 ft. of a school and parts of the 1994 Violence Against Women Act, deciding these laws had nothing to do with interstate activities.