This Settles Nothing
By As regular readers will know, I generally agree with Bob Somerby‘s point that it doesn’t really make sense to assume that Bush places a high priority on overturning Roe v. Wade. But I think this point about John Roberts is wrong:
If Karl Rove is involved in the selection of Court nominees, this sort of Machiavellian political calculation would surely be part of the stew.
In this calculation, Bush/Rove would be looking for nominees with a general conservative profile who wouldn’t be likely to overturn Roe. With Rehnquist’s death, the GOP is down to two anti-Roe votes. Who knows—maybe Roberts and Miers were selected to help keep the count right there.
For the record, Roberts told the Senate, in 2003, that he considered Roe to be “settled law.” This summer, some observers downplayed that statement; they said Roberts only meant that, on the Court of Appeals, he’d follow Roe as Supreme Court precedent. But that just isn’t what it means to call Roe (or anything else) “settled law.” We don’t know if Roberts will vote to overturn Roe. But we’d guess that Buchanan may have it right—that these selections may be about fooling the rubes in Kansas for one more long stretch of years.
This claim about “settled law” is, I think, wrong. “Settled law” is not a technical legal term; you won’t find it Black’s Law Dictionary. Its meaning is vague. Certainly, the term could refer to a previous precedent of a court that one belives should not be reconsidered. But is can also refer to a higher court precedent that is clear, and therefore binding on lower courts (as opposed to a situation in which higher court precedents are ambiguous, or a case where one is dealing with conflicting precedents at equal or lower levels.) Given the context in which Roberts made the claim, it’s overwhelmingly likely that he meant the latter.
None of this means that Roberts is certain to overturn Roe; I have no idea how he would vote on the question. But his description of Roe as “settled law” does not provide meaningful information either way.