Justice Roberts Hints He Could Overturn Roe
Excerpts from an article by: Theodore Kettle
1-24-2010
Chief Justice John Roberts last week made it clear that the Supreme Court over which he presides will not hesitate to sweep away its own major constitutional rulings when doing so is necessary to defend America’s bedrock governing document.
The announcement of that guiding core principle means two very big things. First, Roberts and his fellow strict constructionists on the court are now armed and ready with a powerful rationale for overturning the 1973 Roe v. Wade abortion ruling if Justice Anthony Kennedy or a future justice becomes the fifth vote against Roe.
Secondly, successfully placing Roberts atop the high court is beginning to look like former President George W. Bush’s most important legacy – a gift that will keep on giving for conservatives for decades.
In last Thursday’s 5-to-4 Citizens United v. Federal Election Commission ruling dismantling the McCain-Feingold campaign law, Roberts joined with fellow Bush appointee Justice Samuel Alito to issue a separate concurrence “to address the important principles of judicial restraint and stare decisis implicated in this case.”
While Roberts conceded that “departures from precedent are inappropriate in the absence of a ‘special justification,’” he quickly added that “At the same time, stare decisis is neither an ‘inexorable command’… nor ‘a mechanical formula of adherence to the latest decision’ … especially in constitutional cases,” noting that “If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.”
Instead, under the “stare decisis” judicial doctrine of respecting past rulings, “When considering whether to re-examine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.” The chief justice declared: “stare decisis is not an end in itself.”
The court’s most senior liberal, Justice John Paul Stevens, even found himself haunted by his own words on the subject of when precedent can be discarded, courtesy of Roberts. In a 1995 dissent, Stevens had argued that returning to the “‘intrinsically sounder' doctrine established in prior cases” can “better serv[e] the values of stare decisis than would following” some “more recently decided case inconsistent with the decisions that came before it.”
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