Judge Roberts and the Importance of Precedent

In the opening round of questioning at his confirmation hearing yesterday, Judge John Roberts was asked some specific questions about Roe vs. Wade by Senate Judiciary Chairman Arlen Specter (R-PA). Here is how the Washington Post characterized the exchange:

Specter, who supports abortion rights, and several Democrats challenged Roberts especially hard on his views of Roe , the 1973 decision establishing that women have a constitutional right to privacy that includes the right to an abortion. Because Roe has stood for 32 years, much of the discussion centered on when and why a settled ruling should be overturned.

Roberts told Specter that he respected the doctrine of stare decisis -- letting decided issues stand -- adding, "I do think it is a jolt to the legal system when you overrule a precedent." But some long-standing cases deserve to be overturned, he said, such as those that legalized slavery in the 19th century and racial segregation in the 20th century.

Roberts set forth criteria that he said judges and justices should use to determine whether to "revisit" a precedent, saying they include "settled expectations," the court's legitimacy and whether a precedent is workable or has been "eroded by subsequent developments."

"It is not enough that you may think the prior decision was wrongly decided," said Roberts, who during the 1980s signed a memo saying that Roe was "wrongly decided" and should be overturned.

When Specter asked whether the decision's legal legs have been eroded, Roberts replied: "I feel the need to stay away from a discussion of particular cases."

Although Judge Roberts revealed very little in his testimony about his opinion of Roe vs. Wade (he stayed away from specifics on that case as well as many others since the issues would likely come before the Supreme Court) he has at least revealed a very important asepct of his judicial philosophy: respect for precedents. Although many pro-life advocates (including myself) would like to see Roe vs. Wade overturned, it's not that simple. Deference to prior court decisions is a bedrock prinicple of the law. If cases can be reversed on a whim then prior court decisions have no relevance. Conservatives should be very encouraged by yesterday's hearings. Although Judge Roberts didn't stake out a specific position on Roe he left no doubt that he intends to be a modest judge employing a conservative judicial philosophy and holds high regard for the rule of law. That's exactly the sort of Supreme Court Justice we need.

Comments

[seeker]

We're going to hear a lot more about the role and importance of precedent as we try to overturn Roe v. Wade. I do think it's days are numbered, for the following reasons:

- it was based on false testimony (Jane Roe lied about being raped)
- good decisions, like Brown v. BOE, are generally agreed upon as time goes by, while bad decisions continue to be contentious. RVW has LESS public support now then when it was originally passed.
- precedent is no guarantee that a bad decision can't be overturned. The Supreme Court has reversed itself many times in the past
- RVW misses the most important issue at hand that WILL be answerd in legislation - at what point is a fetus a PERSON with rights, rather than the property of another who can dispose of it at their will?

One of the Senators today (can't find the name or text yet) really laid it down nicely.

We just need good legislation to replace it. I am still in favor of the ideals I set forth in Citizens for Reasonable Abortion Limits (CRAL) rather than the all or nothing approach of the two polarized parties. Granted, my position is still very conservative, but not ultra.