Bench Memos

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Roberts on Roe


Two good analyses of John Roberts’ Roe v Wade comments.

1) Ron Cass—former Dean, Boston University Law School: “Judge Roberts showed a commitment to the rule of law and an understanding that not all precedents are created equal. Some are wrong when decided and grow weaker over time. So when Brown v. Board of Education overruled Plessy v. Ferguson, that changed the law but made it more coherent. Other precedents, even if on doubtful ground when decided, became stronger over time, as Chief Justice Rehnquist concluded occurred with Miranda v. Arizona. Roberts rightly said precedents vary in strength and overruling them on occasion is merited despite its disruption of the law.

“Judge Roberts specifically said that privacy interests are protected under specific constitutional provisions such as the 1st Amendment & 3rd Amendment, and 4th Amendment, which secure private worship, private thought, and private property against particular government intrusions – and also are protected as part of the liberty safeguarded by the due process clause.”

2) Leonard Leo, Executive Vice President, Federalist Society (on leave):
“Judge Roberts did exactly what any nominee before the committee should do in addressing Roe vs. Wade. Like Ruth Ginsburg, he refused to offer any hints or forecasts on how he would address the live issue of abortion. When pressed on whether he would treat Roe as binding precedent, he also did the right thing by declining to fall into that backdoor question about Roe.

“On the question of binding precedent, Roberts correctly noted that there are times when you reverse precedent and accept a jolt in the legal system, as with Brown v Board’s reversal of Plessy and the Supreme Court’s reversal of the Lochner ‘liberty of contract’ cases.”


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