"Settled Law"

[journalist3072]

OK my fellow DUers...help me understand, or put more perspective, on this whole issue of "settled law."

We all know now that John G. Roberts once argued for overturning Roe v. Wade, but in 2003, said it was "settled law."

Does he think that should somehow allay our anxiety about him trying to curtail, or overturn completely, Roe v. Wade?

Correct me if I'm wrong, but just because someone views Roe V. Wade as settled law, does that necessarily mean they won't try to overturn it?

For anyone that has done their research, what, if any, examples do we have where a judge, or a Supreme Court, has tried to overturn something, despite it being settled law? I'm sure it's been done before.

[Wetzelbill]

1. one difference is "settled law" is settled when you are on a lower

court. But, if you are on the SC, you can go back and look at that stuff over. You really don't have to answer to nobody. It's much easier to be an activist if one were so inclined.

[journalist3072]

3. So in other words...

I think what I hear you saying is that just because a Supreme Court justice views something as settled law, that does NOT mean they won't try to overturn that settled law, correct?

And if that is truly the case, then we REALLY need to be worried about his earlier comments on Roe v. Wade.

However, I don't think we need to focus exclusively on Roe v. Wade.

It's my understanding that he is also against affirmative action. I am really interested to hear his views on that. During his confirmation hearing, I want a Senator to ask how he would have decided in the Michigan University affirmative action case that came before the SC.

[Wetzelbill]

9. right you got it

Also to add to that a little, when you are on a lower court if you make a decision, say against AA or Roe well then the SC is just going to overrule you. So it is settled law because your opinions will get overturned by somebody higher than you. But, when you're the one calling the shots, as an SC on a Conservative court will be able to do, that opens up all kinds of opportunities to re-settle a law according to your ideology. That's what makes his earlier comments so disconcerting, as you said.

That's a valid question, I would love to hear what he would say about the U of Michigan AA case. I'm thinking I may not like the answer.

[journalist3072]

11. Thanks so much...

For that clarification. I appreciate it. This is really disheartening, though.

[Erika]

2. A SC decision can be overturned

by a current SC. They can rule on up-coming similar cases to render points made in Roe V Wade moot.

[journalist3072]

4. OK then, one more question?

If they can do that, then what is the point of talking about "precident."

We here all the time about cases that have set "precedent" for future cases.

So if a Supreme Court can easily undo prior decisions, then why talk abo ut "precident" and "settled law" at all?

It would appear to me then, that "settled law" and "precident" don't even really exist.

[Jersey Devil]

6. You make an excellent legal point

The Supreme Court can overturn precedent but is almost always very hesitant to do so and then only when confronted with strong reasons for doing it. For example, Plessy v Furguson (separate but equal schooling for blacks) was "settled precedent" from 1892 until it was overruled by Brown v Bd of Education in 1954, 62 years later, when "separate but equal" was struck down. On the other hand, a lower court MUST follow Supreme Court precedents and cannot overrule them.

I give you a man way ahead of his time, Justice John Harlan, the lone dissenter in Plessy, who said this in 1892. Now THIS is a Supreme Court Justice:

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law...In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case...The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficient purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution."

[journalist3072]

8. KICK---what an excellent post!

Thanks so much for that!

[ltfranklin]

5. I'm not so sure they want to do that...

...considering it means their docket will be packed for the next decade in cases that were settled years and years ago. Every state that ever passed an anti-abortion-rights law will try and push it back through, and be appealed, and appealed, right back up to the Supreme Court in a lot of cases, and inevitably the Supremes are going to have to hear some of these cases. So I don't think you're going to see a blanket renunciation of Rowe V Wade...they'll just wittle it down bit by bit.

[Jersey Devil]

7. When Rehnquist was appointed they started to do that with Miranda

They made some exceptions to the Miranda rule and everyone thought that eventually they would overturn it, but they never went much beyond those original exceptions.

[Floogeldy]

10. Brown v. Board of Education overturning Plessy v. Ferguson

[journalist3072]

13. See, this was an example where

It was a good thing that the SC overturned settled law, because in Brown v. Board, they dertimined that separate schools were indeed unequal.

So there are times when a Supreme Court may indeed need to overturn a bad "settled law."

This is why I think we really need to proble John G. Roberts on his views on abortion. Does he think of Roe v. Wade as a bad "settled law" and think he has the right to try to overturn it?

[Supersedeas]

12. Settled Law for a lower court nominee is not as settled when appointed to

the Supreme Court

Edit: especially when the appointee is on the public record advocated for the law to be over-ruled.

Now, the advocate will be in a position to do just that.