Washington – Supreme Court nominee John Roberts said
Tuesday that the landmark 1973 ruling legalizing abortion was
“settled as a precedent,” as he was immediately pressed to
address the divisive issue on the second day of his confirmation
hearings.
“It’s settled as a precedent of the court, entitled to respect
under principles of stare decisis,” the concept that
long-established rulings should be given extra weight, Roberts told
the Senate Judiciary Committee.
President Bush’s choice to succeed the late William H. Rehnquist
as chief justice, Roberts focused on a 1992 Supreme Court ruling in
Casey v. Planned Parenthood, referring to that as a
precedent-setting case in addition to the 1973 Roe v. Wade ruling.
In the Pennsylvania case, the Supreme Court voted 5-4 to uphold
the core holdings of Roe v. Wade and ban states from outlawing most
abortions. The court said states could impose restrictions on the
procedure that do not impose an “undue burden” on women.
“It reaffirmed the central holding in Roe v. Wade,” Roberts
said.
Roberts answered questions about abortion through the prism of
legal precedent but declined to answer specifically how he would
rule if faced with the question of overturning Roe v. Wade.
The nominee dismissed any suggestion that his Catholic faith
would influence his decisions if he were confirmed to be the
nation’s 17th chief justice. The Roman Catholic Church strongly
opposes abortion.
“There’s nothing in my personal views based on faith or other
sources that would prevent me from applying the precedent of the
court faithfully under the principles of stare decisis,” Roberts
said.
Stare decisis is Latin for “to stand by a decision” and
legally translates into the doctrine that says courts are bound by
previous decisions, or precedents, particularly when a case has
been decided by a higher court.
Despite that principle, the current Supreme Court has been
willing to revisit and overrule previous court decisions, on issues
such as gay rights and the death penalty.
Questioned about rights of privacy, the appellate judge cited
several amendments in the Bill of Rights and said, “I do think the
right to privacy is protected under the Constitution in various
ways.”
Specter, a moderate Republican who supports abortion rights,
asked if the Roe v. Wade decision was a “super-duper precedent”
in light of efforts to overturn it.
Roberts noted that the Supreme Court itself upheld the basics of
Roe v. Wade in the 1992 Casey case.
“That, I think, is the decision that any judge in this area
would begin with,” Roberts said.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the
committee, focused on the balance of power between the executive
branch and Congress – and Roberts’ suggestion, in past writings,
that favor the presidency and speak dismissively of the
legislature.
After considerable discussion about a memo dealing with military
benefits, the White House and Congress, Leahy simply asked if
Congress has the power to declare war.
“Of course, the Constitution specifically gives the power to
Congress,” Roberts said.
Leahy also questioned Roberts about recent Bush administration
documents on torture and interrogation, prompting another
definitive statement from Roberts.
“No one is above the law and that includes the president,” he
said.
Specter pressed Roberts on whether the abortion ruling was
settled law for him, established only for an appellate judge such
as he or “settled beyond that.”
“Well, beyond that, it’s settled as a precedent of the court,
entitled to respect under principles of stare decisis. And those
principles, applied in the Casey case, explain when cases should be
revisited and when they should not,” Roberts said.
In 1992, Rehnquist wanted to use the Casey case to overturn Roe,
but he was stymied by moderate Justice Sandra Day O’Connor, who is
retiring. Justice Antonin Scalia wrote a bitter dissent then, and
is likely to push the court to revisit the issue.
An abortion case will be taken up by the court this fall, but it
does not directly deal with the right to an abortion. The Supreme
Court’s next term begins Oct. 3.
Troy Newman, leader of Operation: Rescue, said anti-abortion
activists weren’t surprised by Roberts’ comments but would watch
him closely.
“We’re concerned about these statements, but the proof will
come when it’s time for him to rule on these cases as a justice,”
Newman said.
Roberts’ opponents complained that he was ducking specific
questions as they expected.
“He’s obviously playing a game of dodgeball,” said Ralph Neas,
head of the liberal People of the American Way.
Sen. Orrin Hatch, R-Utah, asked Roberts whether he was an
originalist, a constructionist, a perfectionist or any of the
oft-repeated legal definitions that analysts and activists apply to
Supreme Court justices.
“I think, like most people, I resist the label. … When
pressed I prefer to be known as a modest judge. I appreciate the
role of judge is limited,” said Roberts, who said he tends to look
at cases according to the facts and details and avoids an
overarching judicial philosophy.
“I don’t think the courts should have a dominant role in
society, in addressing society’s problems. Their role is to judge
what the law is,” he said.
Roberts briefly answered questions about his unpaid work while a
private attorney, including his assistance to a gay rights group in
a Colorado case about discrimination. The group prevailed in what
gay rights advocates consider one of their most important legal
victories.
“I never turned down a request. I think it’s right that if
there had been something morally objectionable, I suppose I would
have. But it was my view that lawyers don’t stand in the shoes of
their clients and that good lawyers can give advice and argue any
side of a case,” he said.
