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Volokh: 'Roe' too broad for Roberts to answer in hypothetical

Todd Zywicki doesn't address any other questions that the Senate Judiciary Committee could aim at Supreme Court Nominee John Roberts, but he does take on Roe v. Wade.

He offers up Judge Edith Jones' reference to Roe in her opinion in McCorvey v. Hill as an example of why Roberts really can't answer questions about Roe in the abstract. Zywicki describes Jones' concerns as being "about stare decisis regarding Roe and Casey, not Roe itself," and says he doesn't see how Roberts can answer questions about Roe:

"[T]here is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract. Given that, I don't see how Judge Roberts could meaningfully answer that particular question based on the lack of a solid factual record."

Zywicki does say, however, that "I haven't made up my mind on Vik Amar's argument that even if Roberts can't be asked about future cases, he could be asked to comment on how he would have decided cases that have already been decided. It is an interesting argument that I have to think about more."

Don't miss the comments.

Posted by Laurel Newby on July 28, 2005 at 05:28 PM | Permalink | TrackBack (0)

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