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September 14, 2005

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.

Posted by Tom at September 14, 2005 12:20 PM

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I'm sorry, but nothing is more important that overturning Roe. Precedent be damned; we're talking about human lives here. I don't care about modest judges and conservative philosophies; I want Roe off the books, plain and simple. In this context even talking about "respect for settled expectations" and whatnot gives me chills.

And I'm a lawyer.

(And I'm not saying Roberts is a bad choice. But this testimony yesterday made me nervous. I assume it was just for show.)

Posted by: Rudolph at September 14, 2005 12:47 PM

I don't think Roberts' respect for precedent is all-consuming, and I'm glad for that. More on his exchange with Specter can be found at American Spectator Online.

Posted by: Patrick O'Hannigan at September 14, 2005 03:04 PM