The Meaning of “Well Settled Law”

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7 Responses

  1. Armando says:

    Excellent analysis.

    Indeed, it was the most important exchange of the entire hearings.

    Alito will almost certainly vote to overturn Roe.

    He well understood what he was doing when he chose NOT to parrot Roberts.

    A clear signal to his supporters on this.

  2. Simon says:

    I can’t help feel that this post promises something it doesn’t actually deliver: “The Meaning of ‘Well Settled Law’.” I wrote a post about a month ago which very briefly contrasted Roe‘s claims as settled law to Miranda‘s, suggesting that whatever settled law might mean, Miranda way well be it, while for all the reasons that Miranda might be settled law, Roe is anything but. This still leaves us with the thorny question for Roe supporters: just what is the meaning of “settled law”? It obviously doesn’t relate to whether the case was correctly decided, it obviously doesn’t relate to whether a the case puts forth a workable standard, and it obviously doesn’t relate to public acceptance – so what is the meaning of “settled law”? I think a post that tries to answer that question (or at least, posits possible answers) is going to be far more interesting to read than a post about Justice Alito’s careful parsing of confirmation questions.

  3. Ben Kennedy says:

    A more revealing question for Alito would be whether or not he considers Buck vs Bell “settled law”

  4. Armando says:

    Simon sez of Roe supporters definition of “settled law”:

    “It doesn’t relate to whether a case was correctly decided.”

    Well, it should not for you either should it?

    “It doesn’t related to whether the case puts forth a workable standard?”

    Of course it does. It is a workable standard. You don’t like the result. Intellectually dishonest of you.

    “It doesn’t relate to public acceptance.”

    How much public acceptance do you need. 60% is not enough for you. 70? 80? 90? 100?

    Course the bottom line is Alito wants to overtur n Roe. And you like that.

    On that you are honest. alito should have been as honest.

  5. Plainsman says:

    The standard now is Casey‘s opaque “undue burden,” not Roe‘s relatively clear trimester framework, and no one has given predictable content to the former standard.

    “Public acceptance” of actual abortion pronouncements like Stenberg — or the conjunction of Roe and Doe v. Bolton — is not 60% or anything like it.

    And even if it were, the fact that 40% of the republic passionately, consistently, indignantly objected to a legal decision, decade after decade, not merely as incorrect but as usurpatious would entail that it is not settled.

    The very reason there is such enormous tension about RoeCasey is that they are the antithesis of “settled law.” Both left and right, Senators and law professors, know it. They are objects of contention. Simon’s point.

  6. timnino says:

    Only the oracle at Delphi will know whether or not Roe is settled enough in the minds of this court’s justices to preclude its overruling. All of the innuendo regarding the exchange between Justice Alito and Sen. Feinstein becomes nothing more than conjecture in the short term, with Alito’s record on the court to place his comments in the proper context over the long term. The placing of the high court back on the path toward an originalist view of the consitution bodes well, however, for the conservative movement (myself included). The ascendancy of the Reagnites to the Judiciary signals an important turn in the life and times of this court. I have seen enough of the biting dissents penned by the likes of Justices Thomas and Scalia.

    Justice Harlan never lived a long enough judicial life to find his dissenting opinions placed in the annals of Supreme Court lore as the most forthright and prescient among his generation of justices. My hope is that Scalia and Thomas may soon witness the ascendancy of their jurisprudential visions as expressed in their numerous dissents over these many years.

  7. Armando says:

    Justice Harlamn lived long enough to see his dissent in Poe become the majority opinion in Griswold.

    Honestly, do you guys know that Harlan caused it all?