Precedent on Precedent

I heard John Roberts testify this morning at his confirmation hearing. When asked by Sen. Grassley in what situations he would overturn precedent, he spoke eloquently and I think I detect an almost impish choice of words. Roberts cited Casey v. Planned Parenthood as an example of how precedent was not inviolate (and then proceeded to summarize Casey's rules for deciding whether to overturn precedent). Here's what Roberts said (page 30-31 of the transcript as now available on the NY Times).

And here again, we're guided by the court. It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't... Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system. Those precedents become part of the rule of law that the judge must apply.

At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration. If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, Because of these three precedents, we reach this result, and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent...

At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent. It is a jolt to the legal system to overrule a precedent and that has to be taken into account as well the different expectations that have grown up around it...

Again, the court's decisions in cases like Casey and Dickerson, Payne v. Tennessee, Agostini, State Oil Company v. Khan, it's an issue that comes up on a regular basis and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case. The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations. [emphasis added]

Sen. Feinstein said she would have "great difficulty" voting for someone whom she "knew would overturn Roe. v. Wade." Judge Roberts has certainly satisfied that test--I don't know what he would do for certain, but I don't think he'd overturn it outright. Throughout the testimony I heard, Judge Roberts spoke far better than any of his questioners. What can I say? I'm impressed. I detect a note of dry wit in his choice to reference Casey so directly.

You know, everyone keeps wondering why exactly Bush picked Roberts--wondering if this is some kind of a secret agenda, wondering if Roberts is a stealth nominee of some kind. But you know, Roberts really is a charmer. Maybe Roberts picked Bush instead.