On the issue of greatest importance to social conservatives - abortion - Judge Roberts paid homage to precedent, but he carefully crafted his answer. He noted Planned Parenthood vs. Casey, while affirming Roe, dispensed with its trimester approach for when abortion might be regulated by the states and replaced it with a requirement that no state may place an "undue burden" on a woman seeking an abortion. Roberts suggests in Casey, Roe's "doctrinal bases of a decision had been eroded by subsequent developments."
For those who believe Roe was wrongly decided (including some people who support abortion rights), that is a significant statement. It indicates that Roberts is not a fundamentalist about previous rulings and that one court is not prevented from overruling the decisions of another court when new information is presented.
Speaking about the value of honoring precedent to avoid an upheaval in law and culture, former Boston University Law School Dean Ron Cass told Creative Response Concepts, a firm working in support of John Roberts, "Not all precedents are equal. Some are wrong when decided and grow weaker over time. Other precedents . such as Miranda vs. Arizona . became stronger over time." Clearly, Roe falls into the former category. Whether a Chief Justice Roberts will reach such a conclusion depends on the type of case he is asked to decide.
Roe is being kept alive by artificial judicial means and will die a slow death. Just as certain legal arguments and precedents were established (such as the right to contraception) before Roe, so, too, will there be cases that continue to weaken Roe until the states are again granted the power to decide the issue. By going slow, Judge Roberts and his pro-life colleagues will be able to lessen the impact of upheaval.
Few doubt Roberts will be confirmed, but he is the undercard. The main event will come should President Bush nominate someone as, or more conservative, than Roberts for the remaining Supreme Court vacancy.
Cal Thomas is co-author (with Bob Beckel) of the book, "Common Ground: How to Stop the Partisan War That is Destroying America".
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