Preserve the Balance
Team Supreme Blog
Roberts and Privacy? He's certainly private about his own views
The right to privacy, or the right to be left alone, is of fundamental importance to all Americans. Given that Roberts dismissed the right to privacy in the past and that the Bush Administration has withheld documents that might provide the public with a better clue, we were glad that Senate Judiciary Committee Chairman, Arlen Specter (R-Penn.) opened today's confirmation hearings with questions about Roberts' view on privacy and, specifically, whether he would return Roe v. Wade.
Specter focused his questions on stare decisis - the principle that the Court should be reluctant to overturn its own decisions. Unfortunately, after a series of characteristically well-mannered dodges, Roberts has left HRC, the Senate, and the American public with barely any answer at all.
Instead, Roberts merely referred to the Supreme Court's 1992 decision in Planned Parenthood v. Casey. Although Casey upheld Roe's central holding that the government may not ban abortion outright, it also altered - and weakened - the rights of women as defined in Roe. Roe almost completely prevented any government intrusion into a woman's choice to seek an abortion in the first trimester. It also applied the most stringent test - strict scrutiny - to laws restricting abortion. Casey scaled back Roe by abandoning the trimester framework and applying the lenient "undue burden" standard, which upholds laws that don't place an undue burden on abortion.
More importantly for the stare decisis line of questioning, Casey also describes the method by which judges may overturn precedent. Roberts reiterated that he would follow this method, in which a justice takes into account:
- the rule has proven to be intolerable simply in defying practical workability;
- the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation;
- related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine;
- facts have so changed, or come to be seen so differently, as to have robbed the old application of justification.
He also acknowledged that the question of whether a case was wrongly decided in the first place factors into whether the Court should overturn it.
Here's what he didn't say: whether he believes that Roe (or Casey, or Lawrence) was wrongly decided. How he would apply the considerations above to those cases, or any other case.
In other words: he didn't say anything about what he, as a justice, might do to scale back our fundamental rights.
~by Lara Schwartz and Liz Fujii
Comments
posted by Anonymous | 9/14/2005 2:27 PM | Permalink
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