The Meaning of “Well Settled Law”

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.'”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

Alito was willing to treat the principle of racial equality and the principle of “one person, one vote” as well settled law, but each of these principles–like Roe–remains contested in particular contexts such as affirmative action and redistricting.

John Roberts had easily accepted the idea that Roe was “settled law,” because much remains contested in application. So why the difference in Alito’s strategy in answering Roe-related questions, since he could have just as easily parroted Roberts?

External politics had shifted. In other words, the significance of Alito’s equivocation in embracing the phrase as applied to Roe had everything to do with the mobilization of grass roots and elite conservatives, who collectively doomed Harriet Miers’ nomination to the High Court. Unlike John Roberts, who (after some clever maneuvering) was picked to replace William Rehnquist, Alito needed to prove that he was no Harriett Miers (i.e., neither neutral nor hostile to movement goals). Alito went to great pains to say that he did not believe that Roe could not be reexamined, that stare decisis was not an “inexorable command,” and that he would keep an “open mind” to any argument raised in court. By taking a wider berth around Roe than Roberts, he was signalling to his supporters that he “got” that they saw his replacement of Sandra Day O’Connor as a decisive moment in American history. Hence, no endorsement of Roe, or of Lawerence v. Texas, or of any privacy decision beyond those establishing the right to contraception.

Don’t forget: there are many who believe that Clinton’s presidency–in which he dismantled welfare “as we know it” and triangulated his way around Washington–was merely a blip in a rather decisive conservative realignment. The only thing that has slowed the conservative movement has been the unpredictability of Anthony Kennedy and Justice O’Connor, neither of whom proved to be consistent friends of movement goals.

All of this goes to show that constitutional language–even the phrase “well settled law”–is entirely permeable to politics. The settlement of precedent is not so much a function of the inherent correctness of a ruling or even of the passage of time since it was handed down; rather it is entirely a matter of the degree of social acceptance of a case. One must pay homage to Brown v. Board and Reynolds v. Sims as icons because of their political-cultural stability. In light of Republican successes at the ballot box and in the courts, Casey is no longer the last word–or even a decisive word–about Roe. Nor, apparently, was Roe the best word on the scope of privacy.

The political scientist Robert Dahl once argued that the Supreme Court was a national policymaker that acted largely in ways that were sympathetic to the agenda of other national elites. Polls suggest that Americans have been consistently divided on abortion, but there is a new institutional configuration at the national level–and among this constituency at least, Roe is more contested than it has ever been in recent years.

Of course, Dahl’s theory has always been better at explaining broad institutional patterns than predicting the behavior of individual jurists. It’s one thing to be sensitive to external politics surrounding a judicial confirmation fight; it’s quite another for such an experience to constrain a Justice’s deliberations. Now that he is confirmed, the question remains: as privacy cases make their way to the High Court, will Justice Alito continue to see rapidly shifting political-legal terrain as his answers suggest, or narrow cases to be decided in light of 30+ years of social and institutional acceptance of a legal rule?

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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?