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Tuesday, July 10, 2018

Stare Decisis

Trump has nominated Judge Brett Kavanaugh to the Supreme Court. Democrats on the Judiciary Committee will try to fight him by bringing up abortion Justice Alito's 2006 confirmation hearing offers a preview of how such exchanges will go.
Judge ALITO. Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions, and I discussed those yesterday, and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis for at least two reasons. First of all, the more often a decision is reaffirmed, the more people tend to rely on it, and second, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior Justices who take the same oath and are scholars and are conscientious, and when they examine a question and they reach a conclusion, I think that’s entitled to considerable respect, and of course, the more times that happens, the more respect the decision is entitled to, and that’s my view of that. So it is a very important precedent that—
Senator DURBIN. Is it the settled law of the land?
Judge ALITO. It is a—if settled means that it can’t be re-examined, then that’s one thing. If settled means that it is a precedent that is entitled to respect as stare decisis, and all of the factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way. 
Senator DURBIN. How do you see it?
Judge ALITO. I have explained, Senator, as best I can how I see it. It is a precedent that has now been on the books for several decades. It has been challenged. It has been  eeaffirmed, but it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I’ve sat on three of them on the Court of Appeals for the Third Circuit. I’m sure there are others in other courts of appeals, or working their way toward the courts of appeals right now, so it’s an issue that is involved in a considerable amount of litigation that is going on.