Bench Memos

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Judge Alito and Roe Hearsay


The AP has just moved a story on two Senators’ reports of their meetings with Judge Alito this morning, entitled “Senators say Alito has respect for Roe v. Wade abortion decision.”

Sen. Joe Lieberman says that Judge Alito told him Roe “was precedent on which people, a lot of people, relied, and had been precedent now for decades and therefore deserved great respect.” Sen. Lieberman calls this “encouraging.”

Sen. Susan Collins reports that, in reference to Roe, “he assured me that he has tremendous respect for precedent and that his approach is not to overturn cases due to a disagreement with how they were originally decided.”

A few points to keep in mind about this hearsay:

1. Such hearsay accounts of these meetings are frequently disputed, and so one is well advised not to treat such hearsay as gospel on Judge Alito’s views. His hearing testimony will provide a more reliable account of his views on the matter, but like Chief Justice Roberts, Justice Ginsburg, and all other nominees, he will certainly not disclose how he would rule on cases that implicate the holding of Roe.

2. Even if the hearsay accounts are accurate, the comments are consistent with then-Judge Roberts’s testimony on the role of stare decisis, purported reliance on prior precedents, and other factors when evaluating whether to overturn a prior Supreme Court case. Chief Justice Roberts testified (and it is both incontrovertible and uncontroversial) that simple disagreement with the outcome of a prior case is not sufficient ground to overturn it, and that stare decisis and reliance are factors to respect and to weigh. This appears to be the essence of what Judge Alito said in these meetings.

3. Moreover, one measure of the amount of “respect” due any particular precedent is how well it has worked: i.e., has it actually “settled” anything? For example, Brown v. Board of Education settled the racial segregation issue very well. There have not been many calls since 1954 to overturn Brown. On the other hand, Roe appears not to have settled very much at all; indeed, the pot only seems to boil more furiously each year, and the cases and the calls to overturn Roe never end.

4. Judge Alito’s dissent in the Third Circuit Planned Parenthood v. Casey decision — like his majority opinion in the Jersey City creche case — reveals his “lawyer’s lawyer” appreciation for precedent, much in line with what Chief Justice Roberts articulated. These “lawyer’s lawyers” also appreciate the difficulties for future application of precedents that have not really “settled” anything at all.


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