Brave, Brave, Brave, Brave Sir Roberts

Uncle AndrewUncle Andrew
Filed under: @ 10:00 pm

Now, I don’t have much of an informed opinion regarding US Supreme Court Chief Justice nominee John Roberts; I’m simply too ingorant. But slipping in and out of the hearings today (and, by association, in and out of consciousness), it seemed to me that the guy is at least quite intelligent, which one would only expect out of a judicial nominee on any level, much less this one. My overall impression is that this is not the person to truly fear, that the Bush administration is saving up the real lulu to replace Justice O’Connor.

Anyway, the verbal back-and-forth at the hearing today had its ups and downs. Among the downs would be what I felt to be a few softballs lobbed by Utah Senator Orrin Hatch—a pity, too, since he actually discussed some interesting points of jurisprudence with Roberts as well.

But the real nifty slider was doled out by Pennsylvania Senator Arlen Specter. You can read the transcript if you like, but it was basically this:

Roberts, of course, has been very reticent to answer questions about “particular issues that are likely to come before the court again” (read: Roe v. Wade). This, of course, is what most people really want to know about the dude, whether they admit it or not. By all means, this is not the be-all and end-all of deciding who is right for this job, but to many people on both sides of the discussion, abortion rights are the linchpin of what is right (liberal humanists) or wrong (religious conservatives) with our society. So it matters.

Specter asked Roberts about the role of precedent in deciding cases. At one point, Roberts stated:

I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.

And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

Of course, there are cases where precedent must be abandoned in the name of justice—Roberts cited Brown v. Board of Education overruling Plessy v. Ferguson as an example—but there was general agreement that the destabilizing aspect of violating stare decisis must be taken into account.

The example Specter cited for this came from Roberts’ predecessor and mentor, Chief Justice Rehnquist, who in 2000 said of the decision in Dickerson v United States to uphold Miranda rights:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now….Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.

Having agreed that precedent and sociocultural stability should weigh heavily in deciding when to override previous Supreme Court decisions, a few exchanges later, Specter fired this one across the plate:

SPECTER: When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you didn’t really know.

And you cited a number. I said, “Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled?”

One of them was Rust v. Sullivan, where you participated in the writing of the brief and, although the case did not squarely raise the overruling of Roe, it involved the issue of whether Planned Parenthood, even if it’s funded with federal money, could counsel on abortion.

And in that brief you again raised the question about Roe being wrongly decided. And then I pointed out to you that there had been some 38 cases where the court had taken up Roe.

And I’m a very seldom user of charts but, on this one, I have prepared a chart because it speaks—a little too heavy to lift—but it speaks louder than just—thank you, Senator—38 cases where Roe has been taken up.

And I don’t want to coin any phrases on super-precedents—we’ll leave that to the Supreme Court—but would you think that Roe might be a super-duper precedent in light of…


… in light of 38 occasions to overrule it?

ROBERTS: Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question.

And that, of course, is in the Casey decision, where it did apply the principles of stare decisis and specifically addressed it. And that I think is the decision that any judge in this area would begin with.

SPECTER: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it’s been widely quoted: “Roe is the settled law of the land.”

Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?

ROBERTS: Well, beyond that, it’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not.

And it is settled as a precedent of the court, yes.

There was more—lots more—and Lord knows this isn’t the end of the discussion over Roberts’ qualifications, or even his stance on or intentions regarding Roe v. Wade. But I think this collection of quotes gives you the picture. It was quite a lively little bout of wordplay.

Sometimes I give my representatives in government too little credit for intelligence. Nice to be proven wrong now and again. 😉

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