Roberts is clearly not buying the idea that overruling Roe is not fairly encompassed within the question presented. Doesn't mean he will go there, but he is not going to send the case back.
Chief asks about “shift of gears” between cert petition and merits briefs.
Stewart: Petition criticized viability line. Question presented fairly includes overturning Roe/Casey. (Chief agrees.)
Stewart now talking about Brown overruling Plessy, as he must when pestered about the awfulness of the Court ever admitting error. In jurisprudential terms, perhaps even a better example is Erie v. Tompkins, which threw out a structural ruling untethered to text and of very long vintage.
It's pretty revealing that the liberal justices are not even attempting to offer a defense of Roe and Casey on the basis that they correctly followed the Constitution. Every argument they have made has been about politics, policy, and precedent (as if bad and unworkable decisions cannot be overturned).
Here's something that's never changed. As Justice White noted in dissent in Thornburgh in 1986, “Roe v. Wade implies that the people have already resolved the debate by weaving into the Constitution the values and principles that answer the issue. . . . I believe it is clear that the people have never—not in 1787, 1791, 1868, or at any time since—done any such thing.” The same is true today.
Kagan says not much has changed in the debate since Roe. Public opinion is still split.
Stewart replies that the passage of time is not a point in Roe and Casey's favor. “Now we have decades of damage… At some point, it's appropriate for the Court to say, enough.”
Stewart responds to Justice Kagan's claim that not much has changed since Roe and Casey by saying that the precedents have done significant damage for decades.
Kagan now says overruling Roe would be about bowing to “what part of the public yells loudest.” Actually, even in political terms, it would be about elections have consequences. That's how democracy works. But there has still been no better answer to this argument than Scalia's dissent in Casey.
Justice Kagan is correct in a sense: Nothing has changed since Roe and Casey were wrongly decided.
Justice Kagan's point that views haven't changed much since Roe and Casey underscores that those decisions' pretension to settle the issue–Casey, recall, asked Americans to come together behind its ruling–failed.