In response to my praise of Judge Roberts’ performance yesterday, John wonders about the content of the judge’s answers, particularly when it comes to Roe v. Wade. John notes that Roberts agreed that Roe and Casey are precedents, and bought into the “erosion” theory under which some precedents are more precedential than others. In addition, Roberts agreed that the constitution includes a general right to privacy.
I thought Roberts’ content was fine although, as I said, I didn’t hear all of his answers. On abortion, I don’t think Roberts gave any ground, but I acknowledge he has never staked out any ground to give. His views on stare decisis seemed unexceptionable. Roe and Casey are precedents, and “erosion” is a factor in deciding whether to overturn a precedent. Roe has been eroded to some extent, as Roberts implied, in that its rationale has shifted a bit. It may well be eroded some more as the Roberts Court decides other cases about abortion. It will also be possible to cite new scientific evidence, as well. Judges can manipulate the test for deciding whether to dump a precedent almost at will, so Roberts remains a virtual free agent when it comes to deciding whether to dump Roe and Casey.
As to the right to privacy, one shouldn’t buy into the left’s claim that the right to an abortion flows from a general right to some privacy. As Ed Whelan notes this morning, “one can believe strongly in privacy rights (as I do) without supporting abortion at all.” Whelan points to opinion polls showing that most Americans believe in the right of privacy but don’t think it means the government can’t interfere with decisions regarding whether a fetus will be destroyed.
The day after he was nominated, I told a radio interviewer that I have no idea whether Roberts will vote to overturn Roe. That’s still the case, and it’s where he should be as a matter of politics and arguably as a matter of judicial ethics. But it is disconcerting for those who view this issue as a litmus test.
UPDATE: Jonathan Adler at NRO’s Bench Memos sees this the same way I do except he’s more confident that Roberts will eventually vote to overturn Roe.
FURTHER UPDATE: Feddie of Southern Appeal is blogging at Confirm Them. He thinks stare decisis is for suckers, but isn’t too concerned that Roberts sees things differently: “Roberts is no more of an activist than Justice Scalia (see his views on the non-delegation doctrine). Both essentially subscribe to what I refer to as Burkean Originalism
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