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Bench Memos

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The Roe Questions



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In questioning from Senator Durbin, Judge Alito was finally able to explain the real reason he cannot be as definitive in his comments about Roe v. Wade as he can about other cases, including Griswold: The Supreme Court already has one abortion case on its docket this term that may affect the Roe/Casey abortion right, and another cert grant is likely. There are also numerous abortion-related cases percolating up through the lower courts. Judge Alito has acknowledged his prior statements challenging the legitimacy of Roe and, in my view spoken quite articulately on how justices should consider prior, potentially erroneous decisions under the doctrine of stare decisis. It would be inappropriate for Judge Alito to say much more than that.



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