Topic: Stare Decisis
Senator: Feinstein
Date: SEPTEMBER 13, 2005
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FEINSTEIN: This morning, there was a discussion about stare decisis. You pointed out there were factors in a consideration of stare decisis. I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.
Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case.
In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable.
FEINSTEIN: Do you agree with this conclusion?
ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and...
FEINSTEIN: So you agree that the court said that, obviously.
ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.
But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.
FEINSTEIN: So work ability is clearly one thing. Is another one reliance?
ROBERTS: Certainly -- or, as it's often expressed in the court's opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that's an important consideration.
FEINSTEIN: And in Casey, again, the court stated, and I quote, "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives and that this ability to control their reproductive lives was enough of a reliance to sustain Roe."
Correct?
ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.
FEINSTEIN: That's correct. That's correct.
Now, unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient?
ROBERTS: Well, again, I think that's asking me whether I think the decision was correct or not on that point.
It certainly was the analysis that the joint opinion in the court entitled to respect it as precedent like any other decision of the court under principles of stare decisis.
And that would certainly be where I would begin. If any of these issues come before the court, if I were to be confirmed, I would begin with the precedent that the court has laid out in this area.
FEINSTEIN: One other question on Casey, and I'd like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing, in a discussion with then-Senator Brown.
"The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner.
"And Casey, which, in other respects, has been greeted in some quarters with great distress, answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband."
Do you agree?
ROBERTS: That is what Casey held, yes. And that's, as I said before, a precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.
FEINSTEIN: Thank you.
One other reading from Justice Ginsburg's testimony: "Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; that two strands, equality and autonomy, both figure in the full portrayal."
Do you agree or disagree?
ROBERTS: Well, I think then Justice -- then-Judge -- Ginsburg felt at greater liberty to discuss that precisely for the reason that you noted, that she had given a lecture on the subject.
Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don't think I should express a view on that.
FEINSTEIN: I'd like to move on.
FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.
Specifically, your brief stated, quote, "Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender," end quote.
In your oral argument you went on to make this point by comparing Operation Rescue's attempts to prevent a woman from exercising her privacy right to make decisions about her pregnancy to an ecologist's efforts to block an Indian tribe from using their exclusive fishing rights.
Do you think that's an appropriate analogy?
ROBERTS: Well, Senator, it was a position and an argument that the administration made that was accepted by the Supreme Court by a vote of 6-3.
The underlying point was that under the statute at issue in Bray, the Ku Klux Klan Act, required under the Supreme Court's precedent that people engaged in the challenged activity must be motivated by a discriminatory animus.
Obviously, under the Ku Klux Klan Act, the classic case, racial hostility.
And the issue was: Are people opposed -- in the Bray case -- opposed to abortion opposed to women?
And the determination of the court was that, no, that there are people who are opposed to abortion and that does not constitute opposition or discriminatory animus against women and, therefore, that the Ku Klux Klan Act didn't apply.
Many other provisions obviously apply in a case of abortion protester violence, including state law and other provisions of federal law, but the Supreme Court concluded 6-3 that there is no discriminatory animus based on opposition to abortion.
FEINSTEIN: Thank you.
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