Jul 29, 2005  |  By: CHRIS CRAIN  | COMMENTS     

the ninth justice, left over? That would be Sandra Day O’Connor, who voted with a 5-4 majority in Bowers vs. Hardwick and refused to join with the majority in Lawrence overruling that earlier decision.

Instead, O’Connor decided the court could strike down the Texas sodomy law — and similar laws in two other states — because it applied only to gay sex, making clear it was motivated by bias against homosexuals as a group. As for the nine states with sodomy laws that applied to both gay and straight sex, O’Connor said they would have to wait for another day and another case.

Don’t expect John Roberts to tell us how he would have voted in Roe or Griswold or Bowers or Lawrence.

But whatever his sterling credentials, Roberts ought to be asked the bigger question before gaining a lifetime appointment to the nation’s highest court:

Does he believe that some personal choices are so private, and so central to an individual’s liberty, that the majority cannot tread on them for no good reason other than they believe it is immoral?

Before I came out, I never understood just how important that question can be for many Americans, whether they’re gay or women or simply choose to live their lives in a way disapproved of by the majority.

John Roberts, who is married with kids, never got that comeuppance. He has lived his entire life as part of the majority, and my strong suspicion is that he sees no threat to freedom from the majority weighing in on those personal choices, and he sees no words in the Constitution giving courts the power to stop it.

If he says anything to suggest that hunch is right, then Democrats and fair-minded Republicans ought to do whatever it takes —including filibuster — to defeat his nomination.