[Roe] is settled as a precedent of the Court, entitled to respect under principles of stare decisis. It is settled.”
John Roberts during his confirmation hearing.
Roe v. Wade “is important precedent of the Supreme Court that has been reaffirmed many times. But then Planned — and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors,” he said in 2018. “So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
Brett Kavanaugh during his confirmation hearing
“Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
Neil Gorsuch during his confirmation hearing
“Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion, on the outcome in Roe v. Wade,” he added, “and my answer to you is that I do not.”
Clarence Thomas during is confirmation hearing
To their credit I suppose, Alito and Barrett didn’t lie quite so egregiously about this specific question as their colleagues did, although they were still extremely disingenuous, to put it as charitably as possible.
When a judge says that a case is “settled precedent,” that has a fairly straightforward technical meaning in the American legal system, which is that the judge is indicating he or she won’t overturn the precedent, absent the development of presently unforeseen extraordinary factors. Otherwise the doctrine of stare decisis is essentially meaningless. Obviously no such factors are present here, so all these eminent jurists were simply lying under oath, which I realize somehow doesn’t count as perjury, because “everybody” knew they were lying at the time.
A judge who lies under oath should be removed from office.
If a reactionary culture acquires enough political power to appoint federal judges, those judges will themselves be reactionaries, and will therefore issue reactionary rulings on a regular basis. Believe it or not, this is considered a mind-blowing intellectual insight in the world of American law schools, where the standard model of jurisprudence still assumes that there’s this little thing called “the rule of law” which is somehow autonomous from the political commitments of its interpreters.
But WHAT COUNTS AS LAW is ITSELF a product of the interpretive commitments of the interpreters, and those commitments have to be political by nature, since the concept of a non-political theory of legal interpretation is every bit as oxymoronic as the idea of a non-political theory of politics. I’m well aware that the Official Centrist Pundit Model of Political Commentary, patented by David Broder et. al. does in fact advocate constantly for a non-political theory of politics, by deploying phrases like “reasonable people, “common sense,” “moderation instead of extremism,” etc. Inside baseball point: In American legal education, this is known as Legal Process Theory, and it was pretty much the dominant model of jurisprudence at Harvard Law School, from which all good things come, for many decades, until the Federalist Society vandals began sweeping across the steppes in the 1980s.
Don’t know if it’s been noted here yet that Thomas’s concurrence calls explicitly for “reconsidering” Lawrence, Obergefell, and . . . wait for it . . . Griswold. This lunatic thinks that states should be free to criminalize the purchase of contraception by married couples, in the name of Freedom ™ no doubt.
Finally, I’m going to write a full post about this, but I want to emphasize that, in a political and cultural and economic world like the USA in 2022, liberal-left advocacy of any serious attempts to make that world genuinely more egalitarian is always going to be at least something of a sham. That’s because such attempts, if successful, would undermine their (our) own social and economic privilege, which is something that very few people are actually willing to help bring about.
Better to write op-eds about what great guys Brett Kavanaugh and Neil Gorsuch are.
Let me end on an appropriately nuanced and eloquent note:
Speaking of which, see if you can find your comment in this thread.