This is a partial review of the confirmation hearings and due to the length of this review I will focus on specific points that pertain to abortion although these issues may also apply to euthanasia and other issues. On the surface, it appears Roberts confirmation as the new Chief Justice of the United States Supreme Court is a given.
Frankly, Roberts is an unknown and we do not know how he is going to vote which causes me to be cautious. As a pro-lifer, I would like to know his stand on abortion, euthanasia, and other right to life issues, but we cannot know this until after his confirmation.
I would be thrilled if he could say that he would overturn Roe vs. Wade even in the face of stare decisis. Unfortunately, currently this cannot happen for a variety of reasons and I realize his answers are designed to give him ‘wiggle room’ in either direction so as to appease both sides. Most importantly, as a judge, he needs to be able to decide case in an unbiased manner based on the presented facts. For my fellow Catholics out there, I am not dismissing or ignoring that we cannot abide by an immoral law. I am addressing our current legal/political environment and evaluating my initial reaction to Roberts in the light of ending abortion.
For starters, Specter’s following statement is appalling and does not deserve further comment, because statement affirms the state of society, our judicial system and that abortion an ‘alternative’ form of contraception in the minds of many.
For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail.
Another prominent issue is whether Roe is ‘settled law of the land’. Here is another excerpt from the same session:
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.
Frankly, this is not what an avid pro-lifer wants to hear, but according to the Supreme Court of the United States, Roberts is correct. Therefore, when faced with the issues of stare decisis and the right to privacy, several factors become important so I am going to revisit other statements from the same questioning by Specter.
Specter’s line of questioning regarding Roe and precedent led straight to an unsurprising discussion of stare decisis. Here is Roberts’ response
Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion, but also in other opinions outside that area of the law.
The principles of stare decisis look at a number of factors. Settled expectations is one of them, as you mentioned. Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments.
For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.
When Specter continued to press Roberts for an answer regarding Roe, Roberts refused to address abortion, because abortion cases are still being heard by the Supreme Court. He also reiterates there are times when precedent may be overruled.
Notice several responses to his questioning regarding the right to privacy and stare decisis.
Not at all, said Leonard Leo, on leave from the conservative Federalist Society to promote the confirmation effort. "What he said about privacy is, in substance, no different from what other recent nominees have said, . . . Justice Clarence Thomas in particular," Leo said in an interview. And Roberts's discussion of stare decisis , he said, "was almost as though you were having a glimpse into the way a judge would sit in his chambers and do the analysis: . . . Maybe there are times when a jolt in the legal system is acceptable."
"While Roberts wanted to give the impression he respected the right to privacy and the precedent of Roe v. Wade , his answers look dangerously similar to the responses Clarence Thomas gave senators during his confirmation hearings," said Nancy Keenan, president of NARAL Pro-Choice America.
But conservative activists say they are not worried. "What he said about Roe was it's deserving of the respect that every precedent of the Supreme Court gets," said Wendy E. Long, counsel to the Judicial Confirmation Network. Source
Personally, I am still weary of Roberts, because this has been a legal tap dance and he remains an unknown, but I will concede that he has left the door open for over turning Roe and I believe the following statement by Senator Brown back is crucial reminder regarding precedent.
We've had a discussion about this super stare decisis issue. And I just want to hold up a quick chart if I could -- if I've got it back here -- the notion that, because Roe has not been overturned in 30-some cases, makes it a super stare decisis: Plessy had not been overturned in a series of cases over a period of 60 years, where the court at each time looked at it, discussed it, decided against overturning it.
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But the notion that by tenure a (inaudible) standing becomes a super stare decisis or by number of times that it's been looked at it become a super stare decisis I don't think finds a basis in law nor in practicality, as you noted. And some of these decisions up there, I would point out to you, are pretty onerous statements that the court put forward itself in how they upheld Plessy for a number of years. Source
For the sake of time and space, I am not going to post the remainder of Brownback’s question, but I would suggest reading his statement when you have a moment. I found it interesting to say the least.
Now I want to address the right-to-privacy, because there is more to this than many lay people realize. The right to privacy according to Roberts has sound roots in the constitution and I appreciate the point he made.
The right to privacy is protected under the Constitution in various ways.
It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.
It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.
It protects privacy in matters of conscience.
Another issue regarding the right to privacy that we need to remember is that court decisions regarding this right are not limited to Griswold, Roe, and Casey. The foundation for Griswold actually began with the Pierce v. Society of Sisters ruling, which overturned the Compulsory Act of 1922 that required parents to send their children to public schools, because it violated a parent’s liberty to send their children to private schools.
"the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
Roberts’ recognition of privacy in matters of conscience – in my mind at least – can be taken in two different directions. Honestly, I believe this statement at least gives a slight reassurance that Roberts would affirm a person’s right to refuse to dispense or carry emergency contraception, to recommend abortion to patients, or a number of other right-to-life issues. What concerns me is will he accept modern thinking that abortion is a matter for one’s conscience and re-affirm Roe? Considering the fact human life is in question, I would hope he would not reaffirm Roe and there is precedent for disregarding stare decisis in this matter. The minimum I believe he will do is reign in some of the heavy-handed tactics to force people into supporting abortion.
Given today’s common definition of the right to privacy which give a woman the right to murder her unborn child, I must say I do not believe in the modern right to privacy. This does not mean I cannot concede that there is a form of privacy granted to us through the constitution. I am not affirming Griswold, because I believe it is a flawed decision for a number of reasons although I doubt it will be overturned at any point in time. However, this is not the proper post for addressing this issue.