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Alito: Roe v. Wade Could Be Subject to Revisiting

With all the hoopla over the dust-up between Sens. Kennedy and Specter and Mrs. Alito's tears, it's important not to overlook one of the more substantive moments at Wednesday's hearing: Judge Alito refused to say Roe v. Wade was settled law and left open the possibility of revisiting it.

When Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis." Stare decisis is a legal principle that, in Latin, means "to stand by that which is decided."

Let's go to the transcript:

DURBIN: Let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis. And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious. And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect. And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it. It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.

But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now. So it's an issue that is involved in a considerable amount of litigation that is going on.

I interpret Judge Alito as saying Roe v. Wade is precedent and entitled to respect, but not necessarily deference. Which means it could be overturned.

Quoting legal scholars, Specter argued that Roe v. Wade amounts to a "super stare decisis" that should not be overturned because Americans have come to rely on it.

"I personally would not get into categorizing precedents as super precedents or super duper precedents," Alito said, referencing a comment Specter made during the John Roberts hearings in which the Pennsylvania senator used the term "super duper" regarding to Roe. "I agree with the underlying thought, that when a precedent is reaffirmed, that strengthens the precedent."

"How about being reaffirmed 38 times?" Specter asked, alluding to what he said is the number of times the Supreme Court has had the opportunity to overturn Roe.

"[E]ach time it is reaffirmed," Alito said, "that is a factor that should be taken into account in making the judgment about stare decisis.

"... Now, I don’t want to leave the impression that stare decisis is an inexorable command, because the Supreme Court has said that it is not."

His refusal to say Roe v. Wade is settled law, when it has been affirmed 38 times since 1973, is beyond troubling since he will become the swing vote for the conservatives on this issue. Leopards don't change their spots.

[Cross-posted at Bush v. Choice.]

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  • Display: Sort:
    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#1)
    by teacherken on Thu Jan 12, 2006 at 02:59:32 AM EST
    I don't remember which Repub, possibly Grassley or Hatch, but in reading the transcript yesterday I remember one using the numberof times Plessy was affirmed (which they claimed was more than 38) to try to undercut this line of questioning. But there was something that puzzled me. The Senator questioning basically stated the Brown overturned Plessy and Alito went along with that description. But as a matter of law I believe that is very inaccurate. As I understand it (and I am not a lawyer), Warren's argument was that - for a variety of reasons - schools separated on the basis of race were inhrenetly UNEQUAL and hence did not meet the separate but equal test of Plessy. Brown therefore did not directly overturn Plessy. I have always assumed that taking this approach was a political strategy by Warren to get an unanimous opinion. After Brown the Court continued to nibble away at Pelssy, not finally stating that it was dead for a number of years. Now, I understand that common knowledge is that Brown flipped Plessy, but common knowledge is often wrong. I took several students to a 50th anniversary of Brown at Howard Law School. Plastered around the walls were newspapers announcing the Brown decision. I remember quite clearly reading the front page of the NY Times which stated that the decision did not affect segregation except in schools and did not therefore overturn Plessy. If I have this correct, mightn't it be interesting if at least one of the Dem Senators who still has time raises that point with Alito? IF Alito were to repeat that, it would seem to me that he would be demosntrating a clear erroneous interpretation of a major landmark case. That might have some weight in wondering in how many other cases his interpretation is NOT in fact technically accurate?

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#2)
    by The Heretik on Thu Jan 12, 2006 at 07:28:56 AM EST
    Well noted and concluded. Cited you in the update at The Crying Game. AND RE: LEAPORDS DON'T CHANGE their spots? That's the reason women may feel they are in a tough spot here with all this talk of "inevitability." If there is one thing women have fought for in the last forty years, it is that some things not be so "inevitable" in their lives. That this discussion of Alito now comes down to his wife's tears more than the struggle women have teared over for decades is a cruel joke.

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#3)
    by mjvpi on Thu Jan 12, 2006 at 08:00:53 AM EST
    Bingo!!!

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#4)
    by roy on Thu Jan 12, 2006 at 08:07:31 AM EST
    I'd hope any liberal nominee would say the same thing. Court decisions, even popular ones, can be overturned. That's how the system works. If a nominee claims that Roe was untouchable, it means he either doesn't understand the job for which he's being considered, or he's lying in order to get the job.

    roy... Agree. Most of the Dems act like Roe v Wade was part of the original constitution and is untouchable. One even compared it to "free speach" in the Bill of Rights!

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#6)
    by kdog on Thu Jan 12, 2006 at 01:51:04 PM EST
    Heck...the current administration has shown us even the 4th amendment can be tossed aside. In truth, you only have the rights you can defend.

    It's the height of inconsistency to argue, as many do, that on the one hand the Constitution is a living, breathing document that should reflect its times but that on the other hand Rove v Wade is "settled" law and should not under any circumstances be revisited. There is no right to abortion (or even a right to privacy) expressed in the Constitution. Even those who champion the right of a woman to choose an abortion without restriction should be able to recognize that Roe was bad law. Bad law always deserves a revisit.

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#8)
    by Slado on Thu Jan 12, 2006 at 02:31:33 PM EST
    I just want to know why abortion is the single most pressing issue of the day? Both sides equally abuse this issue for political gain. But to call it "settled law" is ridiculous and Alito answered the question perfectly. He said in judging any case that delt with abotion he would consider Roe as precedent but that no law was above revision. What about the death penalty? Is that "Settled Law"?

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#9)
    by Patrick on Thu Jan 12, 2006 at 02:53:20 PM EST
    Can somone define "settled law"?

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#10)
    by kdog on Thu Jan 12, 2006 at 03:01:29 PM EST
    I just want to know why abortion is the single most pressing issue of the day?
    Good point Slado. It certainly isn't the most pressing. It gets us all worked up, and keeps our eye off the corruption, the war, and the fundamental rights that are being eroded as we speak.

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#11)
    by Sailor on Thu Jan 12, 2006 at 03:59:19 PM EST
    Good point kdog. scAlito danced around the Roe v. Wade question quite a bit, and never answered it.
    Most of the Dems act like Roe v Wade was part of the original constitution and is untouchable.
    A right to privacy; a right to control our own bodies; a right to be free of gov't intrusion. It is a a constitutional question.

    Re: Alito: Roe v. Wade Could Be Subject to Revisit (none / 0) (#12)
    by aw on Thu Jan 12, 2006 at 08:53:40 PM EST
    Enjoy your bloody spectacle, righties. Hope you feel manly.

    Let's consider the worst-case scenario: Alito gets confirmed and Roe gets overturned. What would the political consequences be? The Republicans captured the White House in 2000 and held it in 2004 only because the electorate was so closely split that a bit of election fraud could sway things their way and not be too obvious to the general public. Their policies clearly are not in the interest of the majority of the electorate. Only the hypnosis of TV and other mass media keep people under control. A true wedge issue as powerful as abortion, which has direct impact in so many people's (and family's) lives may suffice to cause the backlash that sweeps the bums from office. i'm trying to be optimistic after reading Peter Daou's Broken Triangle earlier today...

    Yeah, charlie, i know the stakes. i'm so depressed. Re-reading my earlier post i can't buy my own rationalization: the 2000 election wasn't "swayed" in a manner that was not obvious. It was blatantly stolen by the very Supreme Court at issue in this thread. Where was the enraged backlash in 2000?