ConfirmThem

By Marshall Manson Posted in Roberts — Comments () / Email this page » / Leave a comment »

There has been much discussion in this forum and elsewhere about Judge Roberts' answers at his hearing last week regarding Griswold, Roe and the issue of precedent. Some commenters have challenged me and others to defend Roberts' statements on the issue. While I have refused (f0r reasons that I have explained here and here), that doesn't mean others aren't on the case.

Over at National Review, Ed Whelan has an outstanding commentary addressing this subject in detail. It's a must-read.

Here's the central point:

It is a testament to Roberts's skills as an advocate that his remarks at his confirmation hearing on abortion and stare decisis have been understood by Specter and many other supporters of Roe as suggesting that he would not vote to overrule Roe. What seems not to have been noticed is that Roberts in fact deftly repudiated Specter's notion that Roe is some sort of "super-duper precedent" entitled to "super stare decisis." In so doing, he marked the path for the eventual overruling of Roe.

Specter's "super stare decisis" notion implies that there is an especially high wall that would need to be surmounted to overrule Roe. But Roberts reconceived this single high wall as two successive hurdles that would have to be cleared: first, the precedent in Planned Parenthood v. Casey on whether or not to revisit Roe, and second, the precedent in Roe, as modified by Casey, on what abortion regulations are permissible and on the standard of review to be applied to them. Roberts's phrasing cleverly obscured the point that it is far easier to go over two hurdles in succession than over a wall that is the height of the two hurdles combined.

Roberts's statement that Casey is "settled as a precedent of the Court, entitled to respect under principles of stare decisis" is definitional boilerplate in Roberts's usage. As Roberts employs the terms, anything that qualifies as "precedent" is "settled," and all precedents of the Court are "entitled to respect." In Roberts's words, Casey is "entitled to respect like any other precedent of the Court."

Roberts stated in his hearing that "it's vitally important that nominees, to use Justice Ginsburg's words, [give] no hints, no forecasts, no previews" of issues that are likely to come before them. Unlike some who think he was trying to telegraph his position on Roe, I think that he was steadfastly adhering to this standard.

That said, those like me who believe that the issue of regulating abortion must be restored to the democratic processes should take comfort in Roberts's analytical framework.

Read the whole thing.

Let me also just add that Whelan has been on top of all of the issues and discussions surrounding the Roberts' confirmation better than anyone else. His insight has been crucial for non-lawyers like me trying to understand the details.