The Lonely Centrist

A place for reasoned debate about the issues of the day.

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Wednesday, January 11, 2006

"Settled" Law

Listening to the Alito hearings today, I found it intererting as Dick Durban and Dianne Feinstein (and maybe others - I didn't hear them, though) kept trying to get Alito to say that Roe v. Wade is "settled law." For his part, Alito patiently replied, over and over, that precedent was a very important factor, but it was not the be all, end all of analysis.

But my question is this: Does anyone seriously think that Roe v. Wade is "settled law?" Is there a major constitutional question which is more unsettled? I mean, the whole reason this is such an issue is because the law is so unsettled, isn't it? The Democrats, for example, have tried to question Alito about some 20 year old comments in which he expressed some skepticism about the Court's one person/one vote cases (see my earlier post on that subject). But those get no traction. Why? Because that is settled law. Nobody is seriously suggesting that one person/one vote will be overruled any time in the future, and there is no serious constituency for that.

Brown v. Board of Education - now there is settled law. Roe, on the other hand, is wildly divisive among the population. Later precedents upholding it have tended to be by narrow 6-3 or 5-4 votes. Many, if not most legal scholars who support the result, such as Laurence Tribe, the late John Hart Ely, and even Justice Ruth Bader Ginsberg have been highly critical of the reasoning in Roe. Other serious legal scholars have written, and continue to write, that the case should be overruled.

A good decision that should be upheld? No comment. A bad decision, but one which now has in support the considerations of stare decisis? Perhaps. But settled law? No way.

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