Skip to comments.Would Miers have Voted to Overturn Roe?
Posted on 10/27/2005 2:42:37 PM PDT by counterpunch
Would Miers have Voted to Overturn Roe? "Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling.
To determine this to the best of our ability, we must know her opinion on stare decisis, and her conditions for revisiting precedent.
Luckily, Miers provides us incite into just this question in her answer to #28 of the Senate Judiciary Committee questionnaire.
Here Miers tells us:
Miers does however list the specific conditions under which she would revisit court precedent. The precedent of Roe v. Wade was revisited in Planned Parenthood v. Casey and reaffirmed, based largely on stare decisis. Therefore, we can use Casey as a guide for how the Court views the precedent of Roe v. Wade. Let's see how Planned Parenthood v. Casey answers each enquiry to revisit precedent as laid out by Miers criteria point by point:
"Judicial activism" can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it. Mere disagreement with a result is insufficient to justify ignoring applicable precedent, but reconsideration under appropriate circumstances is also necessary. There are clear examples, like Brown v. Board of Education, where revisiting precedent is not only right, it is prudent. Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable, whether developments in the law have undermined the precedent, and whether legitimate reliance interests militate against overruling.
Any decision to revisit a precedent should follow only the most careful consideration of the factors that courts have deemed relevant to that question. Thus, whether the prior decision is wrong is only the beginning of the inquiry. The court must also consider other factors, such as whether the prior decision has proven unworkable,
Although Roe has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.
whether developments in the law have undermined the precedent,
No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.
It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U.S. 479 (1965). See Roe, 410 U.S., at 152 -153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e.g., Carey v. Population Services International, 431 U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 494 (1977).
Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278 (1990); cf., e.g., Riggins v. Nevada, 504 U.S. 127, 135 (1992); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24 -30 (1905).
Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the [505 U.S. 833, 858] concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I), and by a majority of five in 1986, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 529 (O'CONNOR, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U.S., at 521 (REHNQUIST, C.J., joined by WHITE and KENNEDY, JJ.); id., at 525-526 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 537, 553 (BLACKMUN, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563 (STEVENS, J., concurring in part and dissenting in part).
and whether legitimate reliance interests militate against overruling.
The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennessee, [505 U.S. 833, 856] supra, at 828, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.
While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe's holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.
To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that, for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. [505 U.S. 833, 857]
This is a vanity.
No. Self determination. remember?
She might of would of if she could of, but she won't!
Now you're just showing off.
We'll never know now.
I seem to recall a case about beating a dead horse. Glad that Miers is out of the picture...but the focus now is whether Bush will nominate another lib (Gonzales) or a conservative (Brown, McConnell, Luttig et al.).
This thread is very silly and just a touch vindictive.
Thankfully, we'll never need to find out.
Nope. It's in "News/Activism."
The reality is - what does it matter now.
He will not nominate Gonzales. If "executive privilege" over documents was a problem with Miers, it will be a problem-squared with Gonzales.
Fortunately, her potential votes are no longer relevant.
Who gives a flying frick how she would have voted! She was a OUIJI board pick and only the Ouiji board would have told her how to vote.
Actually I wrote it last night, but it was too late to post it, so I thought I'd put it off until today. I had put enough research into it that I felt it was worth discussion even after her withdrawal, so I changed a few future tenses to past tense, and posted.
There was a lot of debate, and there was never any consensus on the issue of Miers v. Roe. A lot of her remaining supporters will try to say "yeah, but she would have overturned Roe!"
So I wanted to address that still, as I believe I have solid evidence that she never was willing to.
At this point why care?
This is what is known as a moot point.
One can endlessly debate whether she'd have voted to overturn that decision, but there's little doubt that even if she did it wouldn't be for the correct reasons.
Roe is just a symptom.
If you want a Google GMail account, FReepmail me.
Bit of a moot point, eh?
Thank you for getting it.
Ironic though, that her name's a homophone for "mire." Her nomination got mired (Miered) down and never gained momentum.
It's like an ice cream man named Cone.
The fact she was childless bothered me a little on the Roe issue...
Harriet Miers is a fine woman and public servant. Let's leave her alone now.
Is the pope Catholic?
That dog won't hunt. The 1993 speech trumps current speculation.
Or a Library Cop named Lt. Bookman.
You got it.
That one's from Seinfeld.
If Cone's first name is Waffle, he and I could be bestest friends!
If you want a Google GMail account, FReepmail me.
And if his first name is Pine, probably not.
I see we're both quick to turn a phrase today. Roger that!
If you want a Google GMail account, FReepmail me.
That's right Gonzales is out. The politics of the situation however demands another woman. Which might be a very good thing. I want a conservative originalist on the court and I want one of the fairer sex. Edith Jones or Janice Rogers Brown will do quite nicely.
Moreover, the resistance met by Bush on Harriet Miers by the senate should lead him to conclude that the republican senators have been grown a pair.
That may or may not be true but nobody could blame Bush for assuming they have. Personally I have my doubts but what the hey, nothing ventured nothing gained.
She is history!
Roe v. Wade...let's not be a one trick pony here people. I want a strict constitutionalist. The abortion issue, even if struck down federally, could be approved by the individual states. I really get tired of our side v. their side on one single issue. While we worry about Roe here came McCain/Finegold, and the emminent domain case. We have better things to do than get all hot and bothered about ONE thing. We should keep our eye on the prize, a strict constitutionalist that would assure our liberty.
Miers never heard of Roe. Only Democrats have heard of Roe.
What's the point?
I am 39 years old, never married, no children and am saving myself for my husband when I eventually do marry one day. I am 100% pro-life and would overturn Roe V. Wade in a hot second if given a chance. Heck, there are plenty of pro-abortion women out there who have children. That being said, I had plenty of reservations about Miers, but her not having children was not one of my concerns.
Would Miers have Voted to Overturn Roe? YES
I agree, believe me, I think that Miers would have been the only evangelical on the court. I've been supportive of the Miers nomination because I support President Bush in this time of war and I think it's time for a prolife conservative evangelical on the Supreme Court. However, I was very concern about what she said about abortion in the 1993 speech, and if it were so, it was a grievous fault, and I will not support someone who is pro-choice or pro-abortion.
Some good conservative societies, they are all honorable groups, they consciously or unconsciously oppose her because they don't trust her being an evangelical. And they are great conservative people, so it is now important to note the relative proportion of membership in various religious group these conservative societies are and who is their choice. One religious conservative group or men can not be overly proportion on the court. I support President Bush and think he is great! President Bush cares and has done so much for us.
Early withdrawal anxiety? :-)
I think it's time for a prolife conservative evangelical on the Supreme Court.Maybe people distrust an evangelical on the Court for the same reason you want one -- because they fear, just as you hope, that her religion would have shaded her view of the law.
they consciously or unconsciously oppose her because they don't trust her being an evangelical.