- The Washington Times - Tuesday, September 13, 2005

How much weight should a Supreme Court justice give to “stare decisis,” the Latin phrase meaning to let stand what has already been decided?

The Senate Judiciary Committee’s Chairman, Sen. Arlen Specter, Pennsylvania Republican, wasted no time yesterday probing Judge John G. Roberts Jr.’s view on the doctrine.

Specifically, Mr. Specter asked how stare decisis applies to Roe v. Wade, which legalized abortion in 1973, and a subsequent case which upheld it in 1992.

Judge Roberts said he wished not to discuss abortion since it is likely to come before the Supreme Court again, but asserted that past rulings may indeed warrant reconsideration under special circumstances.

“It is a jolt to the legal system when you overrule a precedent,” he said, adding that “the principles of stare decisis recognize that there are situations when that’s a price that has to be paid.”

Judge Roberts cited the historic 1954 ruling in Brown v. Board of Education, which revisited and overturned the “separate but equal” Plessy v. Ferguson ruling of 1896, paving the way for racially integrated public schools.

Legal scholars say stare decisis carries more weight than any other single judicial philosophy adhered to by the Supreme Court, but that it is by no means carved in stone.

Edward P. Lazarus, an appellate lawyer in Los Angeles, noted the high court’s revisiting of issues related to sexuality in recent years.

In 1986, the court upheld a Georgia law criminalizing privately conducted oral and anal sex between consenting adults. The court revisited and overturned the ruling in 2003, finding such laws are unconstitutional.

“The notion that this is a court that will not revisit past precedent, that’s not true,” Mr. Lazarus said.

He added, however, that “there is a relationship between how long a case has been around and the court’s willingness to revisit it.”

“The degree to which society has organized itself around a decision is a well-acknowledged factor in the stare decisis calculus,” Mr. Lazarus said.

Disagreements over the extent to which society has organized itself around legalized abortion are at the core of the debate over whether stare decisis should apply to Roe v. Wade.

After nearly two decades on the books, the Supreme Court revisited the ruling in 1992 and upheld it with Planned Parenthood v. Casey. Moments into yesterday’s hearing, Mr. Specter, the lone pro-choice Republican on the committee, asked Judge Roberts whether stare decisis shall apply to Roe and Casey.

“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,” said Mr. Specter, directly quoting the Casey ruling.

“Would you agree with that?” he asked.

“The importance of settled expectations in the application of stare decisis is a very important consideration,” Judge Roberts said.

“Whether the doctrinal bases of a decision have been eroded by subsequent developments,” he said, “may be a basis for reconsidering the prior precedent.”

Probed further, Judge Roberts said: “I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions.”

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