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Bench Memos

NRO’s home for judicial news and analysis.

Re: Washington Post as Cheerleader for Democrats



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The Post article asserts at one point that Alito’s answers on Roe and stare decisis “departed notably from those that [John Roberts] gave when asked similar questions during his confirmation hearing four months ago.” But three paragraphs later, it contradicts itself, noting that Roberts was “reluctant” to address the issue and relying instead on his statements from his D.C. Circuit confirmation hearing in 2003.

The article does note that Roberts stated the tautology that Roe is “settled as a precedent of the court.” But in Roberts’s usage, every precedent is settled; that is the necessary predicate for calling it precedent and for addressing whether it should remain settled. The article then quotes as seemingly authoritative Senator Durbin’s statement that Alito “would not use those same words.” In fact, Alito, in his exchange with Durbin, said essentially the same thing that Roberts did:

“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.”

In sum, Roberts’s and Alito’s answers on Roe and stare decisis are substantively identical.



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