Balkinization: Roberts, Precedent, and Abortion

Roberts, Precedent, and Abortion

If you read Judge Roberts' testimony carefully, you will see that he states that Roe is settled precedent whose continuing authority is determined by another precedent, Casey, and its rules for when you are allowed or not allowed to overturn an existing precedent.

This is not a representation that Roberts will never vote to overrule Roe. It is a statement that he will regard Roe as settled unless the precedent becomes vulnerable along the lines set forth by the Casey joint opinion; i.e., that the reliance interest in the precedent is not too great, that the precedent has been undermined by later holdings, that the precedent has proven unworkable, and perhaps most important, that new facts have arisen (or understandings of the facts) that make the precedent no longer reasonable. (You may wonder why he regards Casey as precedent since it was a joint opinion. The answer is that later decisions, like Stenberg v. Cahart have treated it as binding.) This makes Roberts somewhat different than Scalia, who repeatedly stated in Stenberg that Casey was entitled to no precedental respect and must be overruled.

As I've said before, this suggests that Roberts satisfied the "reverse litmus test" that President Bush's nominees have to meet. And as I also said before, I think the new mainstream conservative position on abortion is going to be something like "Roe is settled law, but we are going to read it very narrowly and chip away at it slowly."

Nothing in Roberts testimony suggests anything different from this approach. He acknowledged the existence of a right to privacy, and even the soundness of Griswold v. Connecticut (he was not about to make Robert Bork's crucial mistake). But he did not say that the right should be construed expansively. (He also said in passing that every current Justice recognizes the constitutional right of privacy. This is a bit of a stretch since neither Thomas nor Scalia say they do, unless Roberts was being sly and running the Due Process right together with the Fourth Amendment right to privacy, which of course both Justices believe in).

I thought that it was particularly interesting how much Roberts emphasized precedent rather than original intention (or original understanding) in his remarks. This suggests (although it certainly does not prove) that Roberts is primarily a doctrinalist and a legal process conservative rather than a judge who regards himself primarily as an originalist. I note, however, that this does not mean that he will necessarily come out differently than either Justices Scalia or Thomas on a whole host of issues, for there is usually more than one way to get to a particular legal result.

Posted 9:50 AM by JB [link]