Roberts on Roe

If you are among those who are confused or worried about John Roberts' comments on Roe v. Wade, you should read this interesting analysis by Ed Whelan. (HT: ConfirmThem.com.) ConfirmThem also has a good collection of its own analysis and comments on the subject.

Here's my view:

According to Robert Bork, stare decisis at the Supreme Court level applies much more strongly to statutory law than to Constitutional law. Bork's reasoning, as I understand it, is that in the case of statutes, Congress can amend them, but changing the Constitution is left only to the very difficult amendment process or the decisions of the Supreme Court. In other words, the Court defers to legislative judgments, and follows precedential decisions interpreting those judgments, all the while recognizing that if the Court gets stare decisis wrong in interpreting a statute, Congress can fix that error, in effect reversing the Court. But if the Court gets a Constitutional decision wrong, short of a Constitutional amendment only the Court can reverse that decision. So the Court should not consider its past questionable Constitutional decisions as quite so iron-clad; it needs to police itself and, where appropriate, reverse itself. Think of Plessy v. Ferguson, which had to be reversed 60 years later by Brown v. Board of Education.

I did not watch the Roberts confirmation hearings at length, but I haven't heard or read anything suggesting that Judge Roberts disagrees with Bork's view of stare decisis. Nor do I think any senator's questions in the hearings were designed to expose such a sophisticated approach to the Supreme Court's role. If Roberts does indeed agree with Bork, then his answers to Senator Specter on the "super-precedent" questions were beyond clever.

Viewed in that perspective, Roberts' statement that the Casey decision is "entitled to respect like any other precedent of the Court" means something much different than the heartburn-producing interpretation some conservatives are giving it.