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?