I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough-and the Court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

Chairman SPECTER. A jolt to the legal system, a movement against stability-one of the Roberts doctrines.

Judge ROBERTS. An overruling of a prior precedent is a jolt to the legal system. It is inconsistent with principles of stability and yetChairman SPECTER. One-go ahead.

Judge ROBERTS. I was just going to say, the principles of stare decisis recognize that there are situations when that's a price that has to be paid. Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast Hotel case overruling the Lochner era decisions. Those were to a certain extent jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments-that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable carried the day in those cases.

Chairman SPECTER. One final citation from the joint opinion in Roe: "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding."

Do you think the joint opinion is correct in elevating precedential force even above the specific holding of the case?

Judge ROBERTS. That is the general approach when you're considering stare decisis. It's the notion that it's not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account, the values of respect for precedent, evenhandedness, predictability, stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it's been eroded.

So to the extent that the statement is making the basic point that it's not enough that you might think the precedent is flawed to justify revisiting it, I do agree with that.

Chairman SPECTER. When you and I met on our first so-called courtesy call, I discussed with you the concept of a super-stare decisis. And this was a phrase used by Circuit Judge Luttig in Richmond Medical Center v. Governor Gilmore in the year 2000, when he refers to Casey being a super-stare decisis decision with respect to the fundamental right to choose, and a number of the academics-Professor Farber has talked about super-stare decisis, and Professor Estrich has, as it applies to statutory lines.

Do you think that the cases which have followed Roe fall into the

Judge ROBERTS. Well, it's a term that hasn't found its way into the Supreme Court opinions yet. I think—

Chairman SPECTER. Well, there is an opportunity for that. [Laughter.]

Judge ROBERTS. I think one way to look at it is that the Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the Court, entitled to respect under principles of stare decisis. And that would be the body of law that any judge confronting an issue in his care would begin with, not simply the decision in Roe v. Wade but its reaffirmation in the Casey decision. That is itself a precedent. It's a precedent on whether or not to revisit the Roe v. Wade precedent. And under principles of stare decisis, that would be where any judge considering the issue in this area would begin.

Chairman SPECTER. When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you did not really know, and you cited a number. And I said, "Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised but all with an opportunity for Roe to be overruled?" One of them was Rust v. Sullivan, where you participated in the writing of the brief, and although the case did not squarely raise the overruling of Roe, it involved the issue of whether Planned Parenthood units funded with Federal money could counsel on abortion. And in that brief, you again raised the question about Roe being wrongly decided, and then I pointed out to you that there had been some 38 cases where the Court had taken up Roe.

I am very seldom a user of charts, but on this one I prepared a chart because it speaks a little too heavy to lift, but it speaks louder than just-thank you, Senator Grassley. Thirty-eight cases where Roe has been taken up, and I don't want to coin any phrases on super precedents. We will leave that to the Supreme Court. But would you think that Roe might be a super-duper precedent in light—

[Laughter.]

Chairman SPECTER. of 38 occasions to overrule it?

Judge ROBERTS. The interesting thing, of course, is not simply the opportunity to address it, but when the Court actually considers the question. And that, of course, is in the Casey decision where it did apply the principles of stare decisis and specifically addressed it. And that I think is the decision that any judge in this area would begin with.

Chairman SPECTER. Judge Roberts, in your confirmation hearing for circuit court, your testimony read to this effect, and it has been widely quoted: "Roe is the settled law of the land.” Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?

Judge ROBERTS. Well, beyond that, it's settled as a precedent of the Court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as

Chairman SPECTER. You went on then to say, "It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision." So it has that added precedential value.

Judge ROBERTS. I think the initial question the judge confronting an issue in this area, you don't go straight to the Roe decision; you begin with Casey, which modified the Roe framework and reaffirmed its central holding.

Chairman SPECTER. And you went on to say, "Accordingly, it is the settled law of the land," using the term "settled" again. Then your final statement as to this quotation, "There is nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey."

There had been a question raised about your personal views, and let me digress from Roe for just a moment because I think this touches on an issue which ought to be settled. When you talk about your personal views, and as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate and he spoke to the Greater Houston Ministerial Association in September of 1960, “I do not speak for my church on public matters, and the church does not speak for me"?

Judge ROBERTS. I agree with that, Senator, yes.

Chairman SPECTER. And did you have that in mind when you said, "There is nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey"?

Judge ROBERTS. Well, I think people's personal views on this issue derive from a number of sources, and there's nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the Court faithfully under principles of stare decisis.

Chairman SPECTER. Judge Roberts, the change in positions have been frequently noted. Early on in one of your memoranda you had made a comment on the so-called right to privacy. This was a 1981 memo to Attorney General Smith, December 11, 1981. You were referring to a lecture which Solicitor General Griswold had given 6 years earlier, and you wrote, Solicitor General Griswold "devotes a section to the so-called 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution." Do you believe that the right to privacy-do you believe today that the right to privacy does exist in the Constitution?

Judge ROBERTS. Senator, I do. The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment, which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It's protected under the First Amendment, dealing with prohibition on establishment of a religion and guarantee of free exercise, protects privacy in matters of conscience. It was protected by the Framers in areas that were of particular concern to them that may not seem so significant today, the Third Amendment, protecting their homes against the quartering of troops.

And in addition, the Court has, with a series of decisions going

of the liberty protected by the Due Process Clause. The Court has explained that the liberty protected is not limited to freedom from physical restraint, and that it's protected not simply procedurally but as a substantive matter as well. And those decisions have sketched out over a period of 80 years certain aspects of privacy that are protected as part of the liberty in the Due Process Clause under the Constitution.

Chairman SPECTER. So that the views that you expressed back in 1981, raising an issue about "amorphous" and "so-called" would not be the views you would express today?

Judge ROBERTS. Those views reflected the Dean's speech. If you read his speech, he's quite skeptical of that right. I knew the Attorney General was, and I was transmitting the Dean's speech to the Attorney General. But my views today are as I've just stated them. Chairman SPECTER. So they were not necessarily your views then, but they certainly are not your views now.

Judge ROBERTS. I think that's fair, yes.

Chairman SPECTER. With respect to, going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda in the 1974 case, Michigan v. Tucker, which I am sure you are familiar with. They did not apply Miranda, without going into the technical reasons there. But the issue came back to the Court in U.S. v. Dickerson in the year 2000, and the Chief Justice decided that Miranda should be upheld, and he used this language, that it became "so embedded in routine police practice to the point where the warnings have become a part of our National culture."

Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?

Judge ROBERTS. Well, I think those are some of the considerations the Court applied in Casey when it applied stare decisis to Roe, and those were certainly the considerations that the Chief Justice focused on in Dickerson. I doubt that his views of the underlying correctness of Miranda had changed, but it was a different question in Dickerson. It wasn't whether Miranda was right, it was whether Miranda should be overruled at this stage, and the Chief applied and address that separate question distinct from any of his views on whether Miranda was correct or not when decided, and that's the approach the Court follows under principles of stare decisis.

Chairman SPECTER. Well, that is the analogy I am looking for in Roe v. Wade. He might disagree with it at the time it was decided, but then his language is very powerful when he talks about it becoming "embedded in routine police practices to the point where the warnings have become a part of our National culture." The question, by analogy, whether a woman's right to choose is so embedded that it has become a part of our National culture. What do you think?

Judge ROBERTS. Well, I think that gets to the application of the principles in a particular case, and based on my review of the prior transcripts of every nominee sitting on the Court today, that's where they've generally declined to answer, when it gets to the ap

I would repeat that the Court has already applied the principles of stare decisis to Roe in the Casey decision, and that stands as a precedent of the Court as well.

Chairman SPECTER. So you are not bound to follow it, but it is pretty impressive logic?

Judge ROBERTS. In the Casey decision at

Chairman SPECTER. No, no. I am talking about Chief Justice Rehnquist on Miranda.

Judge ROBERTS. I think in that case, the Chief's explanation of why they weren't going to revisit Miranda is-it persuaded, I believe, all but one member of the Court. And I'm sure it had added persuasive effect because of the Chief's prior views on Miranda itself. It is a recognition of some of the things we've been talking about, the values of stare decisis. I don't think, again, that there's any doubt what the Chief, certainly what he thought. He told us what he thought about Miranda.

I doubt that those views have changed, but there are other considerations that come into play when you're asked to revisit a precedent of the Court, and those are the things we've talked about, and they're laid out again in Dickerson and other cases of the Court. Payner v. Tennessee, for example, Agostini, a variety of decisions where the Court has explained when it will revisit a precedent and when it will not, and of course the decisions come out both ways.

In Payne v. Tennessee the Court went through the analyses. It was a case about whether victims could testify at sentencing. The precedent said no, and they overruled those.

Chairman SPECTER. Let me move to two more points before my time is about to expire, 2 minutes and 35 seconds.

There is a continuing debate on whether the Constitution is a living thing, and as you see Chief Justice Rehnquist shift his views on Miranda, suggests that he would agree with Justice John Marshall Harlan's dissent in Poe, where he discusses the constitutional concept of liberty and says, "The traditions from which it developed, that tradition is a living thing."

Would you agree with that?

Judge ROBERTS. I'd agree that the tradition of liberty is a living thing, yes.

Chairman SPECTER. Let me move in the final two minutes here to your participation, pro bono, in Romer, where you gave some advice on the arguments to those who were upholding gay rights, and a quotation by Walter Smith, who was the lawyer at Hogan & Hartson in charge of pro bono work. He had this to say about your participation in that case supporting or trying to help the gay_community in a case in the Supreme Court. Mr. Smith said, “Every good lawyer knows that if there is something in his client's cause that so personally offends you, morally, religiously, or if it so of fends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn't take it on, and John”— referring to you-"wouldn't have. So at a minimum he had no concerns that would rise to that level."

Does that accurately express your own sentiments in taking on