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.