ROBERT SIEGEL, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.
A look ahead now to hearings that start next week in the Senate, the confirmation hearings of Judge John Roberts to be a Supreme Court justice. One of the questions that's likely to figure in the questioning of Judge Roberts and in the comments of other witnesses is his view of what is settled law, for example, in the areas of privacy and reproductive rights. When should the court stand by that which is decided, and when should the court not stand by what is decided and break new ground?
Well, here for our law tutorial is Professor Jeffrey Rosen of the George Washington University Law School, who is also legal affairs editor of The New Republic and will take part in our coverage of the Roberts confirmation hearings.
Professor JEFFREY ROSEN (George Washington University Law School): Nice to be here.
SIEGEL: ...Jeffrey Rosen. And to stand by what is decided is English, but this is law, so we should say instead?
Prof. ROSEN: Stare decisis. Let the decision stand.
SIEGEL: And as a legal principle, what does that mean, let the decision stand?
Prof. ROSEN: It means that even though the decision might be wrong, judges will reaffirm it. The stability of law and the integrity of the Supreme Court is so important that people have to be able to be sure that decisions won't be overturned all the time, and therefore the decision of a judge to uphold a decision with which he disagrees is an example of stare decisis in action.
SIEGEL: What might be a good example of a court making a decision based not so much on its being wildly impressed with the virtues of the decision, but it is settled law?
Prof. ROSEN: The best and most famous decision is the court's decision to reaffirm Roe vs. Wade in 1992, in Casey vs. Planned Parenthood. And in that case, the court actually gave us four principles for deciding whether or not a judge should uphold a decision that he or she thinks is wrong. The first is: Has it become unworkable? Is it impractical to follow? The second is: Has society come to rely on it, and does social stability require its continued adherence? The third is: Has the doctrinal principle on which it's based been repudiated by society? And the fourth and final one is: Have premises of fact so changed that the factual basis of the decision has collapsed?
SIEGEL: And when the court put all of those criteria to the test, or the issues at stake in Casey to the test, they decided that regardless of how they might have voted originally in Roe vs. Wade, they were going to vote to uphold Roe vs. Wade.
Prof. ROSEN: They did, and several justices made clear that they might not have affirmed it as an original matter. But they said women had come to rely on the decision. They were structuring their lives and economic decisions around it. It had not become unworkable. People understood what the principle was. It had been reaffirmed in other cases. And the final and most important thing was that facts had not completely undermined the basis of the decision, and therefore, unlike Plessy vs. Ferguson, which was overturned in Brown vs. Board of Education, where the idea that segregation was compatible with equality had come to be seen as factually incorrect, by contrast in Casey there was no factual change, and therefore, the decision could be reaffirmed.
SIEGEL: You mean, the Supreme Court could say in Brown vs. Board of Education that separate, indeed, is not equal, and therefore the logic of the original decision no longer holds?
Prof. ROSEN: Precisely. It was clear by 1954 that segregation and equality were incompatible.
SIEGEL: Well, what does Judge Roberts have to say about stare decisis? Is he someone who would regard it as a principle of being a conservative, say, that if it's settled law, you should stand by settled law?
Prof. ROSEN: Well, there's nothing inherently conservative or liberal about stare decisis, but Judge Roberts has been saying repeatedly in his discussions with senators that he is in favor of stability and modesty. And senators are inferring from those comments that his repeated references to stability and his respect for the court as an institution might lead him to reaffirm decisions with which he disagrees.
SIEGEL: So can a senator on the Judiciary Committee put a question to Judge Roberts next week, saying, `In the matter of Roe vs. Wade, do you believe in stare decisis?'
Prof. ROSEN: They can, and I imagine they will. And you've phrased it more economically than perhaps they will. The problem is and the truth is that Judge Roberts probably hasn't had an occasion to develop a well-worked-out theory of stare decisis. As a lower court judge, he didn't need one. He was obliged to follow Supreme Court precedents whether he agreed with them or not. But the central question, getting an honest answer to that question of what he thinks about stare decisis, may be one that's very difficult to actually discern.
SIEGEL: Jeffrey Rosen, thank you very much.
Prof. ROSEN: Thanks for having me.
SIEGEL: Professor Jeffrey Rosen of the George Washington University Law School, also legal affairs editor of The New Republic, who will take part in our coverage of the confirmation hearings of Judge John Roberts next week.
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