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Respecting Precedent, or Settled Law, Unless It’s Not Settled

Publication Date: 
July 15, 2009
The New York Times
Charlie Savage

Lecturer in Law Thomas C. Goldstein is quoted in The New York Times in an article about Judge Sonia Sotomayor's Confirmation Hearings for the United States Supreme Court:

WASHINGTON — Judge Sonia Sotomayor’s testimony about abortion and privacy rights at her Supreme Court confirmation hearing on Tuesday raised a puzzling legal question: when is a Supreme Court ruling a precedent?

Throughout the day, Judge Sotomayor repeatedly insisted that she rules in alignment with precedents, that as a Supreme Court justice she would respect precedent under the doctrine known as stare decisis, and that Supreme Court opinions on everything from gun rights to contraception represent “settled law.”

It was a theme she repeated on the heated topic of privacy rights. Judge Sotomayor said an important contraception rights case that was the foundation of the 1973 Roe v. Wade abortion rights decision was “the precedent of the court, so it is settled law.” She said the same about a 1992 ruling, Casey v. Planned Parenthood, that reaffirmed Roe.


... Tom Goldstein, an appellate attorney and founder of Scotusblog, wrote on Tuesday that her exchange with Ms. Feinstein [about how she might rule in an abortion case] should put such concerns to rest.

The judge had “shown her hand a touch” on abortion, he wrote on Scotusblog, “erasing any suggestion she wouldn’t be with the left on both.”