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.