Yesterday morning I read A BRIEF PIECE listing different ways in which Judge Roberts dodged the abortion question during his senate confirmation hearings.
One comment concerned me. He was reported as saying that Roe "is settled as the precedent of the court."
I realized, though, that this is the kind of thing that might well be taken out of context. Roberts might be describing the present status of Roe without implying anything about whether he’d overturn it in the future.
I wondered what Feddie over at Southern Appeal would have to say on the subject, figuring he (and his co-bloggers) would be glued to C-SPAN and have heard the original context of the remark.
Sure, enough
When one reads the entirety of the exchange, it’s clear that Roberts is being as evasive as he can be on the subject of whether he’d overturn Roe (giving a clear answer on this being certain to torpedo his nomination or cause his defenders to completely melt away depending on the answer).
The comment quoted above, in context, is not an indication that he wouldn’t overturn. He mentions multiple times that overturning precedents sometimes is justified–and sometimes isn’t. The fact that Roe (and the subsequent Casey case) is a precedent does not mean it’s un-overturnable.
My suspicion is that Roberts will vote to overturn, though I’m not comfortable with his level of vagueness. But then I often don’t get my druthers. Ya just gotta deal with that.
Incidentally, in reading Feddie’s transcript you should be aware of a technical term that comes up over and over: stare decisis (pronounced "STAR-ry duh-SIGH-sis"), which is Latin for "to stand by the decisions" (roughly). This is a legal principle that one should be reluctant to overturn precedents because overturning them willy-nilly would have bad effects.
Roberts believes in stare decisis, which makes me unhappy because–to my mind–stare decisis should have only a very limited role in our judicial system. What the law means is what is important, not whether it was correctly interpreted by later courts.
If I’m being serious and nuanced I wouldn’t put the matter this bluntly, but much of the time I find myself endorsing the sentiment over at Southern Appeal (and elsewhere) that
"Stare decisis is fo’ suckas!"
Now if only Feddy would come out with those T-shirt’s he’s promsed that say that.
Would those who worship at the shrine of stare decisis be so quick to defend the Dred Scott decision? Tsk, those pesky abolitionists just don’t understand that it’s all about the owner and the right to his property.
Ellen, you took the words right out of my mouth. I’m sure a slave in 1857 didn’t think much of stare decisis.
Stare decisis (or indecisis) does have its legitmate purpose. One of the roles of the law is for citizens to know in advance how they and their actions will be evaluated. True, if a decision is wrong, its wrong no matter how old, and should be corrected. But at the same time, stability in the law is not something to be sneezed at. Roe is precisely the type of precedent that should carry very little stare decisis weight because it has not resulted in stability at all.
Roberts says he won’t decide cases according to personal views
At the same time, Roberts stopped short of providing his specific views on issues ? as he has steadf
The court never did overturn Dred Scott; we had to go to amendments.
You know, from the title, I thought you were going to talk about ‘social promotion’ confirmations, about confirmation vows not meant. A huge problem in some quarters.
Listen to what Roberts has to say about how he looks at cases. He looks at the law and then checks it against the Constitution, and he has told the Senators that they can overrule the court by passing laws. Besides anyone who is as sarcastic in his writings as Roberts has my support.
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