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Opinion L.A.

Opinion: Elena Roberts?

By Michael McGough
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He didn’t appear with her for a photo op, but a prominent Republican lawyer has helped Elena Kagan prepare for her Supreme Court confirmation hearings. His name is John G. Roberts Jr.

The chief justice’s influence is obvious in the way Kagan parries questions about whether she agrees with Republican-friendly decisions, such as the Roberts Court’s rulings on the right to bear arms or a series of Rehnquist Court decisions expanding state’s rights at the expense of the federal government.

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Kagan’s answer: The decisions are “settled law.”

Where did that ingeniously evasive answer come from? Flash back to Roberts’ confirmation hearings. Asked by Sen. Arlen Specter whether he considered Roe v. Wade “the settled law of the land,” Roberts replied: “It’s settled as a precedent of the court, entitled to respect under principles of stare decisis.”

What makes “settled” such a weasel word is that, unlike “irreversible,” it allows for a future contrary decision. (A substance that settles at the bottom of a cup can be stirred up again.) For senators who would like to predict how justices will vote, it’s, er, unsettling.

-- Michael McGough

Opinion L.A.
Michael McGough

Michael McGough is the Los Angeles Times’ former senior editorial writer, based in Washington, D.C. He wrote editorials for The Times from 2006 to 2021. Before that, McGough worked for 30 years for the Pittsburgh Post-Gazette as a reporter, editorial writer, editorial page editor and Washington correspondent. He wrote about law, national security, politics, foreign policy and religion. McGough is a graduate of Allegheny College and also attended the University of Kent at Canterbury in England and Yale Law School, where he received a master of studies in law degree.

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