I had argued that the Kelo decision was a logical extension of the Court's decisions in previous case and its respect for stare decisis and precedent. In fact, the decision was simply an amalgamation of two previous cases combined together.
So what does this have to do with Roe and the debate over abortion. Simply put, the Court no matter what its current composition is to a certain extent, bound by the decisions of past Courts. The purpose of stare decisis is to provide predictability in the law despite the current personnel on the Supreme Court. Even if a majority of the members of the Court decide to take a case on abortion, itself not necessarily a given, the fact that over thirty years of decision founded on the legality of abortion means that the court will need a solid reason for overturning Roe.
Well today, in his confirmation hearings, Robert said pretty much the same thing that I had argued. (great big hat tip to the live blogging of Tom Goldstein at SCOTUS blog) Precedent is important and it should not be dismissed with significant reason.
9:32 - Specter asks about Casey and its view of stare decisis vis-a-vis Roe. Roberts says "the importance of settled expectations" is "very important." Stare decisis involves many factors, including the workability of precedents and whether the doctrinal bases have been eroded. Specter says those don't apply to Roe. Roberts says he feels the need to stay away from particular precedents. He says that in Casey did consider the erosion of precedent.
9:35 - Specter continues to press on Casey. Roberts says that of 1992 you had a reaffirmation of the central holding of Roe. That application of stare decisis would itself be entitled to respect. Roberts has said nothing that suggests he would vote to overrule Roe.
9:37 - Roberts says he won't say whether he agrees or disagrees with particular cases. Specter says he is asking about jurisprudence and reasoning, not whether Roberts would overrule Roe. Specter focuses on Casey's discussion of the Court's legitimacy. Roberts says legitimacy is critically important, citing Payne v. Tennessee as saying that broad disagreement is a basis for revisiting decision, noting that Casey took the opposite view. "It is a jolt to the legal system when you overrule a precedent." "It is not enough that you think the prior decision was wrongly decided. That doesn't answer the question, it poses the question."
9:40 - Roberts - there are times instability "is a price that has to be paid," citing Brown and other cases. In those instances the overruled precedents had been undermined.
9:42 - Specter asks about "super-stare decisis," Judge Luttig's phrase describing Roe after Casey. Roberts says that the Supreme Court hasn't recognized that term. Casey itself "is a precedent" entitled to respect under stare decisis - i.e., its methodology and reaffirmation of Roe. Roberts is suggesting a double-hurdle for overruling Roe - not just overuling that decision but overruling Casey's view of stare decisis.
9:52 - Specter asks about Roberts' reference in a memo to the "so-called right to privacy." Roberts - I do believe that the right to privacy is protected in various ways; the 4th A; the 1st A; 3d A; and in addition the Court has over a series of decisions going back 80 years has recognized that it is a component of the liberty protected by the Due Process Clause, not merely procedurally but also as a substantive matter as well.
9:55 - How Appealing cites to an AP article saying that Roberts has "sidestepped" Roe. My take is slightly different. He certainly has not answered directly whether he would overrule it. But his comments thus far very strongly suggest that, post-Casey, he would not overturn it given stare decisis.
Can we finally put to rest this issue. The abortion question as it is framed is not the important part. Assuming Roberts is not going to current abortion jurisprudence, the more important question to ask is this one that I wrote about last week.
Found in the OTB Traffic Jam.
Linked to Basil's Blog
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