Attorney General Alberto Gonzales will likely create more controversy than the Bush administration wanted for the upcoming confirmation hearings of John Roberts to the Supreme Court. In an interview with the AP, Gonzales raised the possibility that Roe v. Wade could get reversed by a succeeding Supreme Court:

The legal right to abortion is settled for lower courts, but the Supreme Court "is not obliged to follow" the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court.

In an interview with The Associated Press, Gonzales said a justice does not have to follow a previous ruling "if you believe it's wrong," a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue. ...

"If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Gonzales said.

"If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong," Gonzales said.

Although Gonzales certainly has his legal analysis correct, perhaps it isn't the best time to debate the virtues and vices of stare decisis. Everyone understands that the Supreme Court can, and often has, reversed its own precedent. During a confirmation fight over a more explicitly originalist nominee, such commentary would not make much difference. In John Roberts, though, it appears that the Bush administration wants to present the least possible profile for partisan attacks while still ensuring a conservative replacement for Sandra Day O'Connor. Gonzales' comments only stir up more suspicion that Roberts and Bush have presented this nomination in a dishonest manner.

However, one cannot fault Gonzales for his analysis. After all, had all Supreme Courts relied solely on stare decisis, we never would have had Brown v. Board of Education, which explicitly rejected the Plessy v. Ferguson precedent of almost seventy years. That's more than double the amount of time that has passed since Roe, showing that reversals of even long-standing precedent can be highly beneficial and desirable. Less desirable for opponents of judicial activism is the example discussed by Power Line in Lawrence v. Texas, which discovered a right to sodomy in the text of the Constitution (not strictly homosexual sodomy, as John noted). The court reversed a precedent of less than twenty years in that case, Bowers v. Hardwick, one that some of the current court members helped decide.

Liberals love both decisions, and both explicitly reject the concept of stare decisis, and over a wide range of time gaps. The notion of requiring a Supreme Court nominee to some blood oath to "settled law" shows more than a little hypocrisy. If pressed, Roberts should point out that the Supreme Court has a long history of poorly-decided cases, such as Dred Scott and Plessy, which succeeding courts had a duty to reconsider free of any slavish devotion to stare decisis. What matters most is the Constitution and the proper separation of powers it sets out. That may not prove terribly popular with the fringe in the Senate, but its honesty cannot be challenged.

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