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Questioning Roberts on Overturning Roe:

The question that seems least answerable to me by Roberts in a confirmation hearing is the one in which most people are concerned--whether he would overrule Roe v. Wade. Not because of the issue of whether Roe was rightly or wrong decided in the first place, but rather because there is a separate and independent question of parsing the Supreme Court's confused and confusing stare decisis jurisprudence (although, having read the cases, I'm not sure that the Supreme Court actually has any sort of coherent "jurisprudence" of stare decisis in terms of predicting when it will actually overrule precedent).

What does seem clear about the Supreme Court's stare decisis framework is that it is actually a fact-intensive inquiry that depends very much on the factual record in a given case. Mind you, this is not the typical factual record, but it seems that it would require the Court to consider sociological, scientific, political, and medical data in determining whether to overrule Roe. This question about whether to overrule Roe is much more difficult to answer in the abstract or hypothetical than the question of whether Roe was correctly decided in the first instance.

A good example of the difficulties of the stare decisis inquiry is provided by Judge Edith Jones's concurring opinion in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004). Published news reports generally suggested that Jones's opinion was critical of Roe as a matter of first impression (such as this one from the Washington Post which says, ambiguously, that she "called into question the reasoning behind the Roe v. Wade abortion ruling").

In reality, Jones's opinion is about stare decisis regarding Roe and Casey, not Roe itself. The point of her concurrence is to note the anomaly of the way in which the mootness doctrine operates to prevent the Court's from being able to create a factual record on the types of facts that are necessary to apply the Supreme Court's stare decisis jurisprudence. In fact, the case there was dismissed because it was moot, thereby prohibiting courts from considering the type of evidence that they are required to consider under the Supreme Court's jurisprudence. She writes:

I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.

It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S.Ct. 762, 763, 35 L.Ed.2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.

She notes that the decision for the Supreme Court to reconsider precedent under its own precedent is highly fact-instensive and requires the development of a substantial factual record on a wide-ranging inquiry*:

McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision. Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions. Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling. Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted. Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.

In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew.

Notably, Jones does not prejudge the likely outcome of this inquiry:

This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Court's decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S.Ct. at 2817- 21).

No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey's evidence could be aired.

The problem she was addressing, therefore, was the fact-instensive question of whether the Supreme Court should overrule Roe, not whether Roe was correct in the first instance. To the extent that the Supreme Court has given us guidance in this area (such as its discussion of overruline Lochner versus upholding Roe), it seems to turn on precisely these sorts of broad questions that are simply impossible to answer in a hypothetical without a full factual record.

As Jones further notes, however, this is precisely the sort of factual inquiry that seems to be foreclosed by the interaction of Roe with the mootness doctrine, unless the Court makes an ad hoc exception to mootness. So, even if the Judiciary Committee wants to ask him about overturning Roe, I don't see how he can reasonably answer in the absence of a richer factual record.

In general, the news coverage I saw during the period when Jones was thought to be under consideration fundamentally failed to grasp this distinction between what she actually said in the opinion about precedent versus what people thought she said about Roe v. Wade.

The key point here, though, is that there is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract. Given that, I don't see how Judge Roberts could meaningfully answer that particular question based on the lack of a solid factual record.

Also, I think its kind of funny to think about the Court's "precedent precedent" (i.e., when to overturn a given case)--sort of a "metaprecedent" I guess.

I express no opinion on what other questions are in-bounds or Roberts should be expected to answer. For instance, I'll confess that I haven't made up my mind on Vik Amar's argument that even if Roberts can't be asked about future cases, he could be asked to comment on how he would have decided cases that have already been decided. It is an interesting argument that I have to think about more.

Professor Andrew Samwick seems to think Amar's proposal is ok and gives his answers if he were in the hotseat here.

*I added some paragraph breaks in some of the block quotes for readability here; I have not altered the text.

Richard Bellamy (mail):
I think the problem with Jones's concurrence is with focusing on Casey as a "stare decisis" opinion instead of a "liberty" opinion.

Of course, technically, it is both, but to the "pro-choicers" an analysis of abortion precedents by focusing on "stare decisis" is a lot like analyzing indentured servitude by focusing on a textual reading of the 13th Amendment, to see whether the framers intended the prohibition on "slavery or involuntary servitude" to include voluntary but irrevocable servitude for a term of years.

On would hope that a Supreme Court opinion addressing the question "Can I voluntarily sell myself into slavery for 20 years" would not begin with textual analysis, or stare decisis, or mootness. It would begin with "Hell, no!" on Liberty grounds, and make any other rationale deeply secondary.

By addressing the "stare decisis" portion as the dominant issue, one is making a value decision about the relative strengths of Casey's "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." and Casey's "Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it."

To get to "stare decisis", you've got to skip over liberty.
7.28.2005 3:20pm
Adam (mail) (www):
Here's how I've tried to frame the question. Lengthy set-up, to be sure, but I hope it puts it into context:

"During the 1990-1991 term in Payne v Tennessee, Justices O'Connor, Kennedy and Souter all voted to overturn direct Supreme Court precedents decided by 5-4 votes to allow victim impact testimony to come into trial. The next term, all three refused to do the same with regard to reproductive freedom rights in the Casey decision because, in part, 'for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.' They further wrote that about their nervousness in overturning precedent, stating that 'only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance' and therefore 'subvert the Court's legitimacy beyond any serious question'.

"In a sense, the same occurred in Dickerson v United States, in which the Court, led by Chief Justice Rehnquist, held that the Miranda decision had become such a part of our legal culture that it ought not be overturned.

"Without getting into your personal beliefs on these issues, do you believe that certain precedents are less amenable to be overturned than others because of the public's reliance upon their rules, or do you believe that any case which this Court has decided wrongly ought to be reversed?"
7.28.2005 3:44pm
ghert (mail):
At the risk of drawing Volokh's wrath, I believe all these questions are on a slippery slope toward making the nominee make binding commitments about future rulings. It's only human that once one makes a public stand on an issue it is much harder for that person to address the issue in a detached way. I really don't want them fielding hypos, responding to thinly veiled recaps of Roe v. Wade, and being asked to vote thumbs up or down on any particular case from the past. I want them to take each case as it comes, with as open a mind as they can muster. Getting them to pre-commit lessens my estimation of the judiciary. Roberts ought to invoke a strict version of the "Ginsburg Rule."

Remember when Scalia recused himself when he had spoken out on an issue (ie.e., the Pledge case)? I agreed that he should step aside. Public pre-commitments are impediments to independent judging. Someone with a judicial mind should say, "I can't possibly offer my opinions until I've read the briefs, read the lower court opinions, considered the actual issue being litigated, and heard the oral arguments, and, Senator, it's impossible for you to provide me with all that in a hypothetical."
7.28.2005 3:46pm
Kedawi (mail):
Is it likely that Judge Roberts offered some idea of his position on past cases and/or future issues to those who were screening possible candidates for the President? I doubt that they just picked his name out of a hat or relied on someone's belief that "he's our kind of guy."

Is Judge Robert's ability to make independent decisions any less impeded because of explicit or implicit commitments he may have made to his selectors in private? If he's that dishonest or untrustworthy, then I'm not sure he should be sitting on the Court. In the end, I think the Senate should have just as much information about Judge Roberts opinions as those who have nominated him.
7.28.2005 4:12pm
Dilan Esper (mail) (www):
I understand this isn't Todd Zywicki's main point in the post, but I disagree that Judge Jones wasn't criticizing Roe as well as opining on the relationship between mootness and stare decisis. She clearly was criticizing Roe. Not only does she quote Justice White's dissent with approval, but she several times states that the reason why mootness produces a potentially unjust result is because the Court issued what she sees as a broad, unprincipled, and unwarranted ruling in Roe in the first place. Her argument seems to be as follows: since Roe created a broad and fundamental right to an abortion without a textual warrant in the Constitution, it is potentially unfair for the Court not to be able to revisit it based on all the new facts that Ms. McCorvey produced.

There is no way that Judge Jones' opinion can be seen as anything other than a broad attack on Roe v. Wade.
7.28.2005 4:29pm
Shelby (mail):
This emphasis on not pre-judging by answering hypotheticals seems to me overblown. Particularly if he is asked about past cases, Roberts should not be considered "bound by his answers" any more than the sitting justices are. If, having ruled in Casey, Justice Kennedy has expressed "a view" regarding Roe v Wade and abortion in general, does that mean he has pre-judged the next abortion case to come along? Of course not.

By the same token, Roberts can reasonably be asked about previous cases, and were I a Senator I would take a dim view of refusals to answer. Just because Ginsburg got away with evasiveness is no reason not to raise the bar now. Personally I have no problem with putting Roberts on the court, given what I know now; he's not who I'd nominate but I think he's fine for the position. Even so, my opinion could change depending on his answers, and depending just as much on his responsiveness to reasonable inquiries.
7.28.2005 4:35pm
John Noble (mail):
<blockquote><span style="font-style:italic;"> The key point here, though, is that there is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract.</span></blockquote>
Exactly. The correct answer is: "I would not reverse Roe v. Wade unless it was necessary to reach the correct result in the case before the Court. I cannot prejudge that issue by conjuring or entertaining hypothetical cases that might come before the Court."
7.28.2005 4:36pm
jgshapiro (mail):
In the end, I think the Senate should have just as much information about Judge Roberts opinions as those who have nominated him.

How about asking him this:

"Tell us every question President Bush and/or members of his administration asked you before picking you."

"Now please give us your answers to each of those questions."

I suppose he could leave out questions he was asked or paraphrase answers that he gave in a manner that sounds non-threatening, but if he is going to lie to the Committee or distort his views in order to get confirmed, it really doesn't matter what you ask him, does it?
7.28.2005 4:36pm
Greedy Clerk (mail):
Todd, you're joking? Jones' concurrence was an assault on Roe. Claiming otherwise is intellectually dishonest. Why are conservatives so afraid of sayin Roe was wrongly decided????
7.28.2005 4:41pm
John Jenkins (mail):
Q: "Judge Roberts, were Roe v. Wade to come before the court today, how would you decide it?"

A: "I'd dismiss the case for being moot."

I'd just love to see how the responses turned out. The case would really be moot, after all, since by the time it got to the Supreme Court the woman would have either (1) had the baby or (2) gotten an abortion somewhere else.

The real test case ought to have been someone appealing a succesful prosecution under abortion laws. But no, instead we got that funny little critter "capable of repetition yet evading review."
7.28.2005 4:41pm
ghert (mail):
Kedawi:

I, for one, would be very surprised to learn that Roberts told any screeners that he would overturn Roe -- but I agree that asking him about any such pre-commitments is perfectly legit. I guess that leaves you and me in a stand-off, with both of us relying on our sense of plausibility about whether he made secret pre-commitments or not. I should also clarify that I'm not as opposed to the Senators asking for pre-commitments as I am to Roberts offering them. But let me turn it around. Suppose Roberts answers each and every questions the Democratic Senators ask him. Shouldn't he then recuse himself from dozens or even scores of cases, on the same theory that led Scalia to recuse himself in the Pledge case?
7.28.2005 4:42pm
John Jenkins (mail):
Greedy Clerk:

Roe was wrongly decided: it's poorly reasoned and there was no live case or controversy at the time the case got to the Supreme Court.

How's that?
7.28.2005 4:49pm
Richard Bellamy (mail) (www):
On the other hand, Justice Ginsburg was asked directly about abortion, and she answered. Maybe it's not off-limits after all.

-----------

Senator Hank Brown: [Asked Ginsburg about] equal rights for men and women on the question of abortion.

Ginsburg: I will rest my answer on the Casey decision, which says in the end it's her body, her life, and men - to that extent - are not similarly situated. They don't bear the child.

Brown: [Asked to explain further about whether] the rights of men and women are not equal in this case.

Ginsburg: I said on the equality side of it, that it is essential to a woman's equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints, you are disadvantaging her because of her sex.. The state controlling a woman would mean denying her full autonomy and full equality.

Source: Senate Nomination Hearing, excerpts in NY Times Jul 22, 1993
7.28.2005 4:49pm
WHerndon (mail):
Kedawi's position is undermined by the concete examples of sitting justices. Republicans don't always know what they are getting -- Souter, Kennedy, O'Connor, etc. (And frankly, I never thought Thomas would become as much of a "hard" Originalist as he has become.)

In any case, perfect and equitable knowledge about Roberts is impossible. individual onservatives and liberals, Democrats and Republicans, will have different levels of knowledge about Roberts.

If Democrats want as much info about Roberts, all they have to do is read his opinions as a judge; his arguments as a lawyer; recent news articles quoing family friends and associates, etc. Fire up Google and don't forget to check out the conservative blogs. You can find all the info you need.

I also am extremely dubious of the idea that he is giving secret promises to conservatives as he makes the tour of DC. There's little or no evidence that recent justices have done any such thing. I would think that most potential candidates for the Supreme Court possess enough integrity to avoid such commitments.
7.28.2005 4:57pm
Daniel Chapman (mail):
"On would hope that a Supreme Court opinion addressing the question "Can I voluntarily sell myself into slavery for 20 years" would not begin with textual analysis, or stare decisis, or mootness. It would begin with "Hell, no!" on Liberty grounds, and make any other rationale deeply secondary."

Well I'd HOPE that an answer to ANY constitutional question should start with an analysis of the Constitution rather than a "hell no" gut reaction... The text of the 13th Ammendment seems relevant, doesn't it?
7.28.2005 5:01pm
sarah22 (mail):
ghert:

Regarding the "Ginsburg Rule," Ginsburg's views on many important issues were no mystery. Unlike Roberts, she had gone on the record throughout her career, so refusing to answer some questions did not leave a complete vacuum of information about her philosophy.
7.28.2005 5:30pm
Steve:
John Noble wrote: "The correct answer is: 'I would not reverse Roe v. Wade unless it was necessary to reach the correct result in the case before the Court. I cannot prejudge that issue by conjuring or entertaining hypothetical cases that might come before the Court.'"

This is not so self-evident. Of the current Justices, only Scalia and Thomas take the position that precedent may be overturned when necessary to reach the "correct" result. The other Justices have all recognized that sometimes (but not always, of course) stare decisis may require that the Court reach an "incorrect" result. An example is Rehnquist's opinion upholding Miranda; clearly he believed the result he reached to be incorrect.

Asking Roberts which camp he falls into as far as respect for precedent would reveal something about his judicial philosophy, and it's an area that should be explored.
7.28.2005 5:40pm
alkali (mail):
On would hope that a Supreme Court opinion addressing the question "Can I voluntarily sell myself into slavery for 20 years" would not begin with textual analysis, or stare decisis, or mootness.

Would it be improper to ask Roberts his view of that question? Could he fairly refuse that on the grounds that it might come before the Court?
7.28.2005 5:50pm
WHerndon (mail):
If Ginburg's views on so many issues were no mystery, why did she refuse to answer so many questions?

Still, I'll concede the point that she left a longer public trail than Roberts. (Of course, if Dems hadnt blocked his first go at a federal seat in the early 1990s, the trail would be much longer.)

And yet, even though many GOP senators oppose Roe or were anti-choice, she was confirmed 96-3! Would Democrats support someone as supremely qualified as Roberts even though he was at odds with a cornerstone of the party's platform? Highly unlikely.

It seems, then, that it's the Democratic Party that has the clearcut litmus test. As such, it's no surprise Republican nominees are increasingly reluctant to state their positions openly in any form whatsoever.
7.28.2005 6:01pm
ghert (mail):
Sarah 22:

I am aware she had a long record, but by "Ginsburg Rule," I didn't mean "the nominess refuses to answer if and only if he/she has a long record of positions in the public record," I meant "the nominee aggressively protects against pre-committing to positions or answering hypos, because the nominee wants to protect his/her own independence and the independence of the judiciary at large."
7.28.2005 6:14pm
Steve:
There's no law against feeling "reluctant." But you can hardly say "I decline to answer that question, because I think you would vote against me if I did." A question does not become inappropriate merely because it is uncomfortable to answer.

I don't like the idea of judges being chosen based upon whether they will uphold or overturn a specific case; it makes the judicial branch way too political. But if the Demcrats decided "we won't vote for any nominee who rejects the notion of a constitutional right to privacy," or "we won't vote for any nominee who believes the Ninth Amendment is a dead letter as far as the judiciary is concerned," you can't fairly question their right to do so.
7.28.2005 6:15pm
ghert (mail):
By the way, I was unaware of this ceremony for departing justices. Can any former SCOTUS clerks comment on what the ceremony is like?
7.28.2005 6:15pm
Seth77 (mail):
I found this article to be of interest to this discussion. It takes a pretty skeptical view of principled stare decisis.

THE REHNQUIST COURT AND THE END OF CONSTITUTIONAL STARE DECISIS: CASEY, DICKERSON AND THE CONSEQUENCES OF PRAGMATIC ADJUDICATION

2002 Utah L. Rev. 53
7.28.2005 6:59pm
Kedawi (mail):
ghert:

From all I've read, Judge Roberts was an excellent lawyer and has been a good judge from a jurisprudential point -of-view whatever his politics might be. So, I would be very surprised to learn that he has made explicit commitments about how he would rule on certain cases. However, I would also be very surprised to learn that the Administration nominated him without a better knowledge of his views on various issues and his legal philosophy than has been revealed to the general public or the Senate. I expect that he may not have been asked directly for any specific views but that they were obtained by asking those who are close to him, whether through the Federalist Society or otherwise. Lawyers and Judges are interested in the law and do talk among themselves about their opinions of significant decisions.

My concern is that the Senators have information substantially equivalent to what the Administration had. The point of nominating a "stealth" candidate is that such information is not publicly available and those who know the candidate best are not likely to talk about him to those who may oppose his nomination. So, the only realistic alternative is to get the information from the nominee himself by asking him what he thinks about significant issues.

Giving such information does not commit the nominee to never changing his mind. But, if the nominee is not willing to have a discussion about what he thinks and why he thinks it, how likely is he to be persuaded by argument to make a decision contrary to his preconcieved notions?
7.28.2005 7:01pm
CharleyCarp (mail):
I still think asking Judge Roberts if he thinks the 11th Circuit got it right in Schiavo v. Schiavo is a fine idea. And if you don't want to ask about the result, ask about the methodology, and if you think there isn't enough meat in the appellate decision, ask about the district court decision.

If he thinks the case was wrongly decided by the federal courts, it would be very interesting to hear how and why.
7.28.2005 7:33pm
ghert (mail):
Kedawi:

I guess we don't agree, but I appreciate your comments. Your description of the process sounds like a rational, impartial, cooperative, information gathering process. I view it very differently. I see it as a politically motivated, partisan attempt to force the candidates into stating positions that can then be attacked politically. I see that as harming the judicial function, and I'd urge judicial nominees, Democrats and Republicans alike, not to play that game. When they ask you do pre-commit, "just say no."
7.28.2005 8:08pm
Mike Perry (mail) (www):
"it would require the Court to consider sociological, scientific, political, and medical data in determining whether to overrule Roe."

Yes, but not the ethical. Ethics has nothing to do with law in this country. Law is about social control rather than right and wrong. Had a war not intervened, Dred Scott might have been overturned by economics as tractor combines took over the labor of picking cotton circa 1955. The Court, after all, continued to cite Dred as late as the 1920s.

And when the court finally overturned the 'separate but equal' Plessey with the 1954 Brown v. Board of Education, it couldn't do it because segregation was wrong. Oh no. That would be admitting that all but one member of the 1892 court was a racist and those in the intervening years were no better. No, the court had to create an elaborate sociological charade about kids with white dolls and kids with black dolls. Yes, the Court is never racist. It just that those evil sociologists have told them wrong. Give them the right sociological data and they'll get it right every time. They are, after all, the "Supreme" Court.


Then there's the 1927 Buck v. Bell, declaring forced sterilization constitutional. It was cited with favor in Roe v. Wade, so you could say that in some sense its eugenic mindset remains with us, only the technique has shifted from sterilization to abortion. After all, in the first paragraph of Roe, Blackmun mention racial and eugenic rationale for abortion legalization. The racial rationale isn't hard to discover. The white birthrate had dropped below the replacement level for the first time the previous year (1972), while the black birthrate remained high. Obviously something had to be done by Court members who, of course had never been racists. Oh no, not them.

My own hunch is that the Court will end Roe when it becomes obvious that it is doing more to curtail birth among Ivy League graduates than among poor blacks in Mississippi. That point is not far off. Currently, Mississippi only has one abortion clinic. You can probably find more clinics than that within walking distance of Harvard.

Of course, except for a few on the far right, the Judges will come up with some other rationale, some little bit about medical technology. But the more observant among us will know the real reason. Dred, Plessy, Buck and Roe all line up together. All were evil and in no case has the Supreme Court confessed its error.

I am reminded of what Justice Robert Jackson tried to tell his fellow justices. The Supreme Court is supreme because it is final. It is not supreme because it is infallible.

It's a lesson the present court, Thomas and Scalia excepted, needs to learn.

--Mike Perry, Seattle, editor: The Piovt of Civilization in Historical Perspective and Eugenics and Other Evils
7.29.2005 1:57am
Lab:
Is there a precedent for taking away civil rights formerly recognized by the supreme court ?
7.29.2005 2:47am
Don Neuendorf (mail) (www):
The short version of Jones' remarks is this: According to the rules of the game, Roe can never be reconsidered by the court. Before Roe, any person desiring an abortion could have standing to bring suit against the law. But after Roe, who has standing to challenge the new status quo? No one who opposes an abortion is required to have one, so there is no excuse to bring suit against this new legal landscape. Once Roe was decided the bridges were burned. She, at least, cannot envision a case that would enable the court to turn back from the precipice toward which it is sliding.

And isn't that what we all meant by a slippery slope?
7.29.2005 9:40am
Dick King:
"Before Roe, any person desiring an abortion could have standing to bring suit against the law. But after Roe, who has standing to challenge the new status quo?"

It's a bit far-fetched, but not completely impossible. Those who have not yet reached the age of majority sometimes get legal representation in this country. All we would need is for someone to get hirself appointed attorney for a fetus who was aborted. This may be possible in certain southern states.

-dk
7.29.2005 9:57am
Challenge:
"This is not so self-evident. Of the current Justices, only Scalia and Thomas take the position that precedent may be overturned when necessary to reach the "correct" result. The other Justices have all recognized that sometimes (but not always, of course) stare decisis may require that the Court reach an "incorrect" result. An example is Rehnquist's opinion upholding Miranda; clearly he believed the result he reached to be incorrect."

This is fale. Scalia does not believe this, and I doubt, deep down, Thomas does either.
7.29.2005 10:22am
Challenge:
I would like to also point out to "Steve" what should be obvious. Steve's view of stare decisis makes no sense. The doctrine has no purpose unless the decision IS wrongly decided, but nevertheless is affirmed. For if it is was correct in the eyes of the judge, there would be no need for the doctrine. There would be only one doctrine--a doctrine devoted to reaching the "right" reading of a text. Every current Justice accepts the pragamatic principle to one degree or another.
7.29.2005 10:27am
Ryan Booth (mail):
The only way to challenge Roe now is to get a state to pass a new law prohibiting abortion. Then the case could be appealed up to the Supreme Court level. If the President gets to replace another pro-Roe justice, then it probably won't take too long for that to happen.
7.29.2005 11:58am
Lawbot2000:
Mike Perry: The problem with your worldview is that everyone is a racist. If the Justices don't overturn Roe they are racist judges upholding a racist decision. If they do overturn Roe then they are overturning it because they are racists.
Maybe you need to start thinking outside the box...
7.29.2005 2:42pm
MNKurmudge (mail):
The one I love is Prof. Zywicki's comment:

"unless the Court makes an ad hoc exception to mootness."

Heck, why not? They make exceptions to every rule all the time, to allow themselves to get to the case result they decided to push based on that infinitely elastic standard. Such as the Lujan standing rule followed by Laidlaw, and the tortured explanations from Ginsburg why some woman "feeling uncomfortable" about having a picnic by the river, in the total absence of evidence, means that you have suffered injury sufficient to establish standing.

I suggest that Roberts make it up as he goes along. He'll fit perfectly into the Brennan-Blackmun-Stevens tradition, albeit likely with a different political view.
7.29.2005 4:06pm
Robert Schwartz (mail):
I think the interesting question is whether the justices on this court think that stare decis is as important as staring out the window. They, and their liberal cheerleaders in the MSM, have shown absolutely no interest in the doctrine when it suited their purposes. Vide Lawrence and Roper. Why should I worry about a doctrine that doesn't bother the people who are its guardians.
8.1.2005 9:51pm
destroy table is very good tournament (mail):
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