Topic: A Woman's Right To Choose & Roe vs. Wade
Senator: Specter
Date: SEPTEMBER 13, 2005
Contents
SPECTER: It is 9:30. The confirmation hearing of Judge Roberts will now proceed.
Welcome, again, Judge Roberts.
ROBERTS: Thank you, Mr. Chairman.
SPECTER: We begin the first round of questioning in order of seniority, with 30 minutes allotted to each senator.
Judge Roberts, there are many subjects of enormous importance that you will be asked about in this confirmation hearing, but I start with the central issue which perhaps concerns most Americans, and that is the issue of the woman's right to choose and Roe v. Wade.
And I begin collaterally with the issue of stare decisis and the issue of precedence.
Black's Law Dictionary defines stare decisis as, "Let the decision stand," to adhere to precedence and not unsettle things which are established.
Justice Scalia articulated, quote, "The principal purpose of stare decisis is to protect reliance interest and further stability in the law."
SPECTER: Justice Frankfurter articulated the principle, quote, "We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations."
Justice Cardozo, in a similar vein, quote, "No judicial system could do society's work if each issue had to be decided afresh in every case which raised it."
In our initial conversation, you talked about the stability and humility in the law.
Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?
ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, "To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."
So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.
SPECTER: I move now to Casey v. Planned Parenthood.
SPECTER: Thirty minutes may seem like a long time and a second round of 20 minutes, but the time will fly. And I want to get right to the core of the issue.
In Casey, the key test on following precedents moved to the extent of reliance by the people on the precedent.
And Casey had this to say in a rather earthy way: "People have ordered their thinking and living around Roe. To eliminate the issue of reliance, one would need to limit cognizable reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail."
That's the joint opinion; rather earthy in its context. Would you agree with that?
ROBERTS: Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion, but also in other opinions outside that area of the law.
The principles of stare decisis look at a number of factors. Settled expectations is one of them, as you mentioned.
ROBERTS: Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments.
For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.
SPECTER: But there's no doctrinal basis erosion in Roe, is there?
ROBERTS: Well, I feel the need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis.
And the court has developed a series of precedents on precedent, if you will. They have a number of cases talking about how this principle should be applied.
And as you emphasized, in Casey, they focused on settled expectations. They also looked at the workability and the erosion of precedents. The erosion of precedents, I think, figured more prominently in the courts discussion in the Lawrence case, for example. But it is one of the factors that is looked at on the other side of the balance.
SPECTER: Well, do you see any erosion of precedent as to Roe?
ROBERTS: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again. And in the area of abortion, there are cases on the courts docket, of course. It is an issue that does come before the court.
So while I'm happy to talk about stare decisis and the importance of precedent, I don't think I should get into the application of those principles in a particular area.
SPECTER: Well, Judge Roberts, I don't know that we're dealing with any specific issue. When you mention -- and you brought that term up, "erosion of precedent," whether you see that as a factor in the application of stare decisis or expectations, for example, on the citation I quoted from Casey v. Planned Parenthood.
ROBERTS: Well, in the particular case of Roe, obviously you have the Casey decision in 1992, '93...
SPECTER: '92.
ROBERTS: '92 -- in which they went through the various factors on stare decisis and reaffirmed the central holding in Roe, while revisiting the trimester framework and substituting the undue burden analysis with strict scrutiny.
So, as of '92, you had reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.
SPECTER: The joint opinion (inaudible) after the statement as to sexual activity to come to the core issue about women being able to plan their lives, quote, the joint opinion says, "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."
Do you agree with that statement, Judge Roberts?
ROBERTS: Well, yes, Senator, as a general proposition, but I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions. And I'm reluctant to do that.
That's one of the areas where I think prior nominees have drawn the line when it comes to, "Do you agree with this case or do you agree with that case?" And that's something that I'm going to have to draw the line in the sand.
SPECTER: I'm not going to ask you whether you're going to vote to overrule Roe or sustain it. But we're talking here about the jurisprudence of the court and their reasoning.
Let me come to another key phase of Casey, where the joint opinion says a, quote, "Terrible price would be paid for overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law."
SPECTER: Now, this moves away from the specific holding and goes to a much broader jurisprudential point, really raising the issue of whether there would be a recognition of the court's authority.
And in a similar line, the court said this, that to overrule Roe would be, quote, "a surrender to political pressure." And added, quote, "to overrule under fire would subvert the court's legitimacy," close quote.
So in these statements on Casey, you're really going beyond the holding; you're going to the legitimacy and authority of the court.
Do you agree with that?
ROBERTS: Well, I do think the considerations about the court's legitimacy are critically important.
In other cases, my thinking of Payne v. Tennessee, for example, the court has focused on extensive disagreement as a grounds in favor of reconsideration. In Casey, the court looked at the disagreement as a factor in favor of reaffirming the decision. So it's a factor that is played different ways in different precedents of the court.
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question.
And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
SPECTER: A jolt to the legal system, a movement against stability, one of the Roberts doctrines.
ROBERTS: If a overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability...
SPECTER: Go ahead.
ROBERTS: I was just going to say, the principles of stare decisis recognize that there are situations when that's a price that has to be paid.
ROBERTS: Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions.
Those were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable, carried the day in those cases.
SPECTER: One final citation from the joint opinion in Roe, quote: "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding."
Do you think the court -- the joint opinion is correct in elevating precedential force even above the specific holding of the case?
ROBERTS: That is the general approach when you're considering stare decisis. It's the notion that it's not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account: the values of respect for precedent, evenhandedness, predictability, stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it's been eroded.
So to the extent that the statement is making the basic point -- that it's not enough that you might think the precedent is flawed to justify revisiting it -- I do agree with that.
SPECTER: When you and I met on our first so-called courtesy call, I discussed with you the concept of a "super" stare decisis, and this was a phrase used by a circuit Judge Luttig in Richmond Medical Center v. Governor Gilmore in the year 2000, when he refers to Casey being a "super" stare decisis decision with respect to the fundamental right to choose.
And a number of the academics -- Professor Farber has talked about the "super" stare decisis, and Professor Eskridge has, as it applies to statutory lines.
Do you think that the cases which have followed Roe fall into the category of a "super" stare decisis designation?
ROBERTS: Well, it's a term that hasn't found its way into the Supreme Court opinions yet.
SPECTER: Well, there's an opportunity for that.
(LAUGHTER)
ROBERTS: I think one way to look at it is that the Casey decision itself, which applies the principles of stare decisis to Roe v. Wade, is itself a precedent of the court entitled to respect under principles of stare decisis. And that would be the body of law that any judge confronting an issue in this area would begin with; not simply the decision in Roe v. Wade, but it's reaffirmation in the Casey decision.
That is itself a precedent. It's a precedent on whether or not to revisit the Roe v. Wade precedent. And, under principles of stare decisis, that would be where any judge considering an issue in this area would begin.
SPECTER: When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you didn't really know.
And you cited a number. I said, "Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled?"
One of them was Rust v. Sullivan, where you participated in the writing of the brief and, although the case did not squarely raise the overruling of Roe, it involved the issue of whether Planned Parenthood, even if it's funded with federal money, could counsel on abortion.
And in that brief you again raised the question about Roe being wrongly decided. And then I pointed out to you that there had been some 38 cases where the court had taken up Roe.
And I'm a very seldom user of charts but, on this one, I have prepared a chart because it speaks -- a little too heavy to lift -- but it speaks louder than just -- thank you, Senator -- 38 cases where Roe has been taken up.
And I don't want to coin any phrases on super-precedents -- we'll leave that to the Supreme Court -- but would you think that Roe might be a super-duper precedent in light of...
(LAUGHTER)
... in light of 38 occasions to overrule it?
ROBERTS: Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question.
And that, of course, is in the Casey decision, where it did apply the principles of stare decisis and specifically addressed it. And that I think is the decision that any judge in this area would begin with.
SPECTER: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: "Roe is the settled law of the land."
Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?
ROBERTS: 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.
And it is settled as a precedent of the court, yes.
SPECTER: You went on then to say, quote, "It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision."
So it has that added precedential value.
ROBERTS: I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision; you begin with Casey, which modified the Roe framework and reaffirmed its central holding.
SPECTER: And you went on to say, accordingly: "It is the settled law of the land," using the term "settled" again.
Then your final statement as to this quotation: "There is nothing in my personal views that would prevent me from fully and faithfully applying the precedent, as well as Casey."
SPECTER: There have been questions raised about your personal views. And let me digress from Roe for just a moment because I think this touches on an issue which ought to be settled.
When you talk about your personal views and, as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, "I do not speak for my church on public matters and the church does not speak for me," close quote?
ROBERTS: I agree with that, Senator. Yes.
SPECTER: And did you have that in mind when you said, "There's nothing in my personal views that would prevent me from fully and faithfully applying the precedent, as well as Casey"?
ROBERTS: Well, I think people's personal views on this issue derive from a number of sources. And there's nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court faithfully under principles of stare decisis.
SPECTER: Judge Roberts, the change in positions have been frequently noted. Early on, in one of your memoranda, you had made a comment on the "so-called right to privacy."
SPECTER: This was a 1981 memo to Attorney General Smith, December 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and you wrote, quote, that, "Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution."
Do you believe today that the right to privacy does exist in the Constitution?
ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.
It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.
It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.
It protects privacy in matters of conscience.
It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.
And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause.
The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.
And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.
SPECTER: So that the views that you expressed back in 1981, raising an issue about "amorphous" and "so-called," would not be the views you'd express today?
ROBERTS: Those views reflected the dean's speech. If you read his speech, he's quite skeptical of that right. I knew the attorney general was. And I was transmitting the dean's speech to the attorney general, but my views today are as I've just stated them.
SPECTER: OK.
So they weren't necessarily your views then, but they certainly aren't your views now?
ROBERTS: I think that's fair, yes.
SPECTER: With respect to going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda.
In the 1974 case, Michigan v. Tucker, which I'm sure you're familiar with, he did not apply Miranda -- without going into the technical reason there.
But the issue came back to the court in U.S. v. Dickerson in the year 2000. And the chief justice decided that Miranda should be upheld, and he used this language: that it became, quote, "so embedded in routine police practice to the point where the warnings have become a part of our national culture," close quote.
Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?
ROBERTS: Well, I think those are some of the considerations the court applied in Casey when it applied stare decisis to Roe. And those were certainly the considerations that the chief justice focused on in Dickerson.
I doubt that his views of the underlying correctness of Miranda had changed, but it was a different question in Dickerson. It wasn't whether Miranda was right; it was whether Miranda should be overruled at this stage.
And the chief applied and addressed that separate question, distinct from any of his views on whether Miranda was correct or not when decided. And that's the approach the court follows under principles of stare decisis.
SPECTER: Well, that's the analogy I'm looking for in Roe v. Wade. Might disagree with it at the time it was decided, but then his language is very powerful when he talks about it becoming, quote, "embedded in routine police practices to the point where the warnings have become a part of our national culture."
And the question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?
ROBERTS: Well, I think that gets to the application of the principles in a particular case. And based on my review of the prior transcripts of every nominee sitting on the court today, that's where they've generally declined to answer: when it gets to the application of legal principles to particular cases.
I would repeat that the court has already applied the principles of stare decisis to Roe in the Casey decision. And that stands as a precedent of the court, as well.
SPECTER: So you're not bound to follow it but it's pretty impressive logic?
ROBERTS: In the Casey decision -- well, I mean...
SPECTER: No. I'm talking about Chief Justice Rehnquist on Miranda.
ROBERTS: I think in that case, the chief's explanation of why they weren't going to revisit Miranda -- it persuaded, I believe, all but one member of the court, and I'm sure it had added persuasive effect because of the chief's prior views on Miranda itself.
ROBERTS: It is a recognition of some of the things we've been talking about -- the values of stare decisis. I don't think, again, that there's any doubt what the chief -- certainly what he thought. He told us what he thought about Miranda. I doubt that those views have changed.
But there are other considerations that come into play when you're asked to revisit a precedent of the court. And those are the things we've talked about. And they're laid out, again, in Dickerson and other cases of the court: Payne v. Tennessee, for example, Agostini a variety of decisions where the court has explained when it will revisit a precedent and when it will not.
And, of course, the decisions come out both ways. In Payne v. Tennessee, the court went through the analyses. It was a case about whether victims could testify at sentencing. The precedent said no, and they overruled those.
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