Topic: Did Casey Reaffirm Roe but Change its Framework?
Senator: Hatch
Date: SEPTEMBER 13, 2005
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HATCH: On the War Powers Act, I remember when Senator Heflin years ago in the Breyer hearing said, "You, of course, have been here at various times. Do you have any particular thoughts concerning the authority and what ought to be done relative to this or do you have feel feelings that the War Powers Act is a proper approach to this issue?"
Judge Breyer's simple answer was, "I do not have special thoughts they I would think would be particularly enlightening in that area."
He did not get drawn into interpreting the War Powers Act for the committee, and I suspect that that's the way you feel as well.
Now, my friend the chairman held up a chart with a number of cases that he said relied on Roe v. Wade. In fact, if I heard him correctly, he called Roe a super-duper precedent.
Now, I'm not sure that a super-duper precedent exists, between you and me, but some have said that Planned Parenthood v. Casey, a very important case, reaffirmed Roe.
But let me just ask you this: Am I correct that Casey reaffirmed the central holding in Roe but substantially changed its framework?
ROBERTS: That's what the joint opinion of the three justices said. It was reaffirming the central holding. It revisited and altered the framework...
HATCH: But there were only a few votes to simply reaffirm Roe, weren't there, in the Casey case?
ROBERTS: Well, the plurality opinion is regarded, I think, as the opinion of -- it's the opinion of the plurality, but as the leading opinion of the justices and the majority. It's one the judges look to in the first instance.
There were separate opinions that disagreed with some of the ways in which that plurality revisited Roe. It reaffirmed the central holding in Roe v. Wade, it dispensed with the trimester framework, and it substituted for the strict scrutiny that Roe had established the undue burden analysis that, hence, since the time of Casey, has governed in this area.
HATCH: Well, as I recall it, there were only a few votes, as you've mentioned, to simply reaffirm Roe. But does this suggest that Casey itself noted the troubling features of Roe and indicated that Roe's framework has not been workable?
ROBERTS: Well, the question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis, along with the settled expectations, whether a precedent has been eroded.
That was one of the factors that the court looked at in Casey in determining, I think, to alter the framework of Roe, the trimester framework and the strict scrutiny approach, at least in the terms that were applied by the joint opinion.
HATCH: Our chairman asked if former Chief Justice Rehnquist's opinion in the Dickerson case upholding Miranda would apply to Roe v. Wade. And if I recall correctly, you properly declined to answer, but am I right that Chief Justice Rehnquist repeatedly believed that Roe should be overruled?
ROBERTS: That was his view, yes.
HATCH: And doesn't that mean that Rehnquist himself did not believe that his Dickerson holding should apply to Roe? Would that be a fair conclusion?
ROBERTS: Well, based on his published opinions, and I don't remember -- certainly he wrote in Casey. I don't know if he's written since then. So I just hesitate to ascribe views from 1992 to the current.
HATCH: OK.
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