John Roberts, Clarence Thomas and Roe v. Wade

George W. Bush's Supreme Court nominee says precedent plays an "important role" in our legal system. Now, where have we heard that before?

By Tim Grieve
August 3, 2005 8:35PM (UTC)
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So John G. Roberts is a modest man who respects the guiding force of legal precedent. That's what George W. Bush's Supreme Court nominee says about himself in his responses to a questionnaire from the Senate Judiciary Committee, and we suppose that we're all supposed to find great comfort there.

Roberts writes: "Precedent plays an important role in promoting the stability of the legal system, and a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."


It all sounds great -- especially if you're worried that Roberts has plans to overturn settled law like, say, Roe v. Wade. But before anyone reads too much into Roberts' ode to stare decisis -- the notion that settled law should stay settled absent some "special justification" warranting a departure -- perhaps we should recall that another Supreme Court nominee once offered a strikingly similar ode to the importance of precedent.

During his own confirmation process in 1991, Clarence Thomas said that stare decisis "provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept."

Important and critical, sure, but apparently not important and critical enough to bind Thomas as a sitting justice. As Ken Foskett writes in his biography, "Judging Thomas," Thomas has proven himself more willing than any other justice to turn his back on precedent. As no less of an authority than Antonin Scalia puts it, whatever Thomas the nominee might have said, Thomas the justice "doesn't believe in stare decisis, period."


Foskett cites as an example United States v. Lopez, the 1995 case in which Thomas argued, in a concurring opinion, that the Supreme Court should reverse 70 years of precedent on the meaning of the Constitution's commerce clause. But there's another example worth mentioning, too: In the 1992 case of Planned Parenthood v. Casey, Thomas joined three of his colleagues in a dissent in which they argued that Roe v. Wade was "wrongly decided" and could and should be overturned "consistently with our traditional approach to stare decisis in constitutional cases."

If that's what you get from a man who once called stare decisis "important and critical" while claiming he couldn't recall ever expressing an opinion about the propriety of Roe v. Wade, what can we expect from a nominee who says stare decisis is "important" but is on record as having argued that Roe v. Wade should be overturned?

The president insists that he has no idea how Roberts will rule if and when he gets a shot at Roe v. Wade. We think we can make a pretty good guess.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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