Reply to Berg re: Roberts

I appreciate Tom's reply to my post on Judge Roberts, religion, and Governor Cuomo.  Tom highlights what he sees as two "complications" with my view, which Tom describes in this way:  "Roberts need not be driven by Catholic faith to reject Roe; he can (and should) reject it merely because it's an incorrect interpretation of the Constitution (unwarranted, as RIck earlier says, by "text. history, or structure").

I agree with Tom that the question of "stare decisis" will be at the heart of the Roberts hearings, but I don't think I agree that the stare-decisis problem complicates or undermines my claim that Gov. Cuomo's op-ed, calling for Senators to ask Roberts about the tension between the Constitution and Catholicism, is misguided.  I understand, of course, that the fact Roe was wrongly decided does not necessarily translate into the conclusion that it will or should be overruled.  (More specifically, I understand that Roberts could conclude that Roe was wrongly decided -- and, it strkes me that he is too clear-thinking to believe otherwise -- yet refrain, for stare decisis reasons, from voting to overrule it.)  Still, the question whether Roberts would move from a judgment about Roe's wrongness to a decision to overrule it -- which is, I admit, a subject that Senators are perfectly within their rights to wonder about -- is not a question that, in my view, is remotely likely to be answered through inquiries into Roberts's religious beliefs.  I do not believe the new question that Tom poses -- "If you reach [the] conclusion [that Roe, although wrong, should not be overturned] as a matter of stare decisis principles, but this conflicts with the fundamentals of your faith, what will you do?" -- is materially different from the questions that Gov. Cuomo seems to want and that I think are misconceived.  I do not see how it would, or even could, "conflict[] with the fundamentals of [his] faith" for an appellate judge to decline to overrule a wrongly decided case, even one that has contributed to great evil, and so I don't think the question is appropriate.  (Of course, if the better trained moral philosophers out there tell me that relying on stare decisis to not overrule Roe v. Wade would constitute culpable cooperation with evil, then I'll have to revise my view.)

Rick

UPDATE:   A friend writes with this comment: 

Recently, on the Mirror of Justice blog, you wrote that you didn't see how it would, or even could, conflict with the fundamentals of a Justice's faith for him to decline to overrule a wrongly decided case, even one that has contributed to great evil. It seems to me that, given the nature of stare decisis, there could be such a conflict. The Supreme Court has repeatedly stated, and the legal community seems to agree, that stare decisis is a prudential doctrine, rather than one required by the Constitution or the nature of the judicial function. When the Court declines to overrule a wrongly decided case, it does so not on the grounds that there is anything wrong in principle with overruling prior precedent, but because there are certain prudential concerns that favor upholding the decision. So, for example, in Casey the Court cited the need for stability in the law, the damage that "overruling under fire" would have on the institutional integrity of th e Court, the fact that people had come to rely on the availability of abortion when planning their futures, etc., as reasons not to revisit and possibly overturn the "essential holding of Roe." The problem I would see for a Catholic Justice is that, in the case of something like abortion, any such prudential concerns would be outweighed by the massive injustice and evil that comes from legalized abortion. So he (or she) would not simply be able to say "stare decisis - my hands are tied" as a way of getting out of the difficulty.