first_imgEver since President George W. Bush nominated John Roberts to the U.S. Supreme Court, legal analysts have said that the 50-year-old jurist is an exceptional lawyer, and clearly he is. Only the most skilled of attorneys could so deftly say so little in such a great expanse of time. But don’t fault Roberts for the evasions in his confirmation hearings. He’s merely playing by the established rules of America’s dysfunctional, overly politicized judicial confirmation process. It’s a process for which Roe v. Wade bears much of the blame. On the question of that 1973 Supreme Court ruling, which came up repeatedly throughout last week’s hearings, Roberts remained valiantly vague. What is the judge’s take on stare decisis, the principle that the court is bound by precedent, and how does it apply to Roe? AD Quality Auto 360p 720p 1080p Top articles1/5READ MOREThe top 10 theme park moments of 2019 Roe is “settled as a precedent of the court,” Roberts said. What’s more, “it is a jolt to the legal system when you overrule a precedent,” and “a jolt to the legal system … is inconsistent with principles of stability.” So a Roberts court would uphold Roe? Not necessarily. Roberts went on to note that sometimes a societal jolt is “a price that has to be paid” to correct egregious past wrongs. Thus Roberts, like every senator on the Judiciary Committee, celebrates the court’s decision in the 1954 case of Brown v. Board of Education, which dumped nearly a century of “settled law” and precedent by overturning the racist Dred Scott ruling. Precedents are binding, but they’re not absolute. And there’s no telling what Roberts thinks about Roe. In the 1992 case of Casey v. Planned Parenthood, the court relied on “settled expectations” – i.e., Americans have come to expect easy access to abortion – as a reason for upholding Roe. But as Roberts noted, settled expectations aren’t the only standard for reconsidering contested precedents. Other criteria, Roberts observed, include “extensive disagreement,” whether a precedent has been eroded by subsequent developments, whether a precedent is workable, and whether an old ruling compromises “the legitimacy of the court.” Of course Roberts wouldn’t say so, but by any of these standards, Roe appears to be on shaky ground. Extensive disagreement? Just look at the angry faces in last week’s Senate hearing room. Subsequent developments? Embryology has come a long way since the court concocted its trimester-based theory on human life in 1973. As for workability, by removing the question of abortion from the arena of politics, and shifting it to the courts, Roe has hardened political divisions. This summer, we saw those divisions nearly derail government in the Senate standoff over judicial nominations. Finally there’s the question of the court’s legitimacy, which Roe has only undermined. Abortion is a topic about which the Constitution is silent, and in which the court never needed to enmesh itself. Nonetheless, in 1973, the court intervened, thereby compromising the judiciary’s reputation and stability. In no small part because of Roe, the Supreme Court is increasingly seen not as a dispassionate arbiter of the law, but as one more political body dispensing political decisions. The proof is in Roberts’ hearings. Because of Roe and similarly politicized rulings, we now choose justices for largely political reasons, but the old, holdover rules of judicial ethics preclude nominees from talking politics. So confirmation hearings become pointless spectacles, generating much heat but little light. “We are rolling the dice with you, judge,” a disgusted Sen. Joe Biden, D-Del., told Roberts last week. “It’s kind of interesting, this kabuki dance we have in these hearings here, as if the public doesn’t have a right to know what you think about fundamental issues facing them.” Only when the Supreme Court removes itself from the business of setting social policy, and limits its role to its constitutional functions, will the kabuki dance stop. Post-Roe, all 50 states would take up the abortion issue separately, setting their own policies depending on local sensibilities. A long-thwarted debate could proceed rationally. And no one would care about Roberts’ personal opinions on the matter, because they would truly be irrelevant. The court could begin to restore its integrity. If Chief Justice Roberts ever needs a good reason to revisit Roe, he need only remember the farcical events of the past week.— Chris Weinkopf is the Daily News’ editorial page editor. Write to him by e-mail at [email protected] local news?Sign up for the Localist and stay informed Something went wrong. Please try again.subscribeCongratulations! You’re all set!last_img read more