Senators Also Evasive on Reversing Precedents

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  • 03/02/2023

When chief justice nominee John Roberts appeared in the Senate Judiciary Committee this week for confirmation hearings, much of the questioning revolved around when he believed it was appropriate to reverse established Supreme Court precedents.

The left fears Roberts may vote to reverse liberal-activist decisions such as Roe v. Wade, or other precedents that have distorted, to the left’s advantage, constitutional provisions.

HUMAN EVENTS Assistant Editor Amanda Carpenter turned the tables on senators, asking them which precedent they would most like to see Roberts overturn. Democrats evaded the question.

A few Republicans, on the other hand, cited Kelo v. New London, which authorized government to take private property from one owner and give it to another. Only one Republican queried, however, Sen. Jeff Sessions of Alabama, volunteered he would like to see Roe reversed.


If Judge Roberts gets confirmed, what Supreme Court precedent would you most like to see him overturn?

SEN. BARBARA MIKULSKI (D.-MD.): Oh, I haven’t thought about that. I don’t want to see him overturn anything.


If Roberts gets confirmed, which precedent would you most like to see him overturn?

SEN. RICK SANTORUM (R.-PA.): Is this like what? Do I get two from column A? Two from column B?

Any one you want. Or, if you want to suggest a couple, go ahead.

SANTORUM: I don’t think—that’s not why I am going to be voting for a Supreme Court justice. I vote for a Supreme Court justice based on whether I think he will fairly interpret the Constitution in a way consistent with what the actual language of the Constitution is, as opposed to what five members of the court decided they believe is best for the country. That is what I am looking for.

I am not looking for any particular precedent to be overturned. I am looking for a judge who understands the proper role of a judge on the court.


If Roberts gets confirmed, which precedent would you like to see him overturn?

SEN. CRAIG THOMAS (R.-WYO.): Oh, I don’t—I don’t have any notion about overturning precedents. What I am looking for is a judge that goes on there to evaluate the constitutionality of issues and not to put forth issues, but to evaluate the laws that are in place.


If Roberts gets confirmed, which precedent would you most like to see him overturn, if any?

SEN. JOHN MCCAIN (R.-ARIZ.): Eminent domain. That is one I am very concerned about.


If Justice Roberts gets confirmed, which Supreme Court precedent would you like to see overturned the most?

SEN. MEL MARTINEZ (R.-FLA.): I don’t have a precedent I’m looking to have overturned. I think that depends on what comes before the court.


If Justice Roberts gets confirmed, which Supreme Court precedent would you most like to see overturned?

SEN. JIM JEFFORDS (I.-VT.): That’s a hard question. Gosh, I have not had sufficient time to analyze efforts to answer that.

OK, so you aren’t going to name one?

JEFFORDS: Nope.


If or when Justice Roberts is confirmed, which Supreme Court precedent would you most like to see him overturn?

SEN. SUSAN COLLINS (R.-MAINE): [Laughter.]

SEN. JOE LIEBERMAN (D.-CONN.): Oh, that’s a fascinating question but not one that can be answered [snaps fingers] like that.

Thank you. Senator Collins, do you have an answer?

COLLINS: I don’t have an answer.


If or when Roberts is confirmed, what Supreme Court precedent would you most like to see him overturn?

SEN. GEORGE ALLEN (R.-VA.): Let’s see. This recent ruling. He’s got to get a case. The case has to present itself, but I would like to see him overturn this New London, Conn., decision. It was a narrow decision taking away people’s property rights.

So, Kelo?

ALLEN: Kelo v. City of New London.

Great. Thank you.

ALLEN: Good question! Who are you with?

HUMAN EVENTS.


What Supreme Court precedent would you most like to see Justice John Roberts overturn?

SEN. JOHN CORNYN (R.-TEX.): Well, that’s an interesting question. I’d have to give it some study.

OK. Not even going to say Kelo?

CORNYN: Kelo would be a good start.


What Supreme Court precedent would you most like to see overturned if Justice Roberts is confirmed?

SEN. HILLARY CLINTON (D.-N.Y.): Oh, I’m not going to answer that.


If or when Roberts is confirmed, what Supreme Court precedent would you most like to be overturned?

SEN. ORRIN HATCH (R.-UTAH): What would I like to see overturned?

Mmm-hmm. Roe? Kelo? Any one?

HATCH: Right now, I think, Kelo.


If or when Justice Roberts is confirmed, what Supreme Court precedent would you like to see overturned, if any?

SEN. DIANNE FEINSTEIN (D.-CALIF.): Oh, I can’t speculate. That’s not where my head is at right now.

OK, but what about the guns [gun-free school zone] case, U.S. v. Lopez, in Texas?

FEINSTEIN: I think how he interprets the Commerce Clause, the 14th Amendment, the spending clause is really vital for the ability of Congress to legislate. It’s social legislation, educational legislation and environmental legislation, because if these things are held as an impermissible use of these clauses, then Congress’ hands are tied and it can’t legislate. There has never been a period in American history when more cases have been overturned than in the last 10 years, and the prior 60 years no cases were overturned.  So, I think that is a major, major issue out there, and pending how it comes out, if it came out negatively, it could really bring about the inability of Congress to legislate certainly environmental law, endangered species, clean air, clean water. 

I also think that these hearings, in a way, although he would never admit it, hopefully are a learning experience for him, because he comes from a different world than we do. What I think he’s really hearing through is the voice of the people.


What Supreme Court precedent would you most like to see Justice Roberts overturn?

SEN. BEN NELSON (D.-NEB.): I’m not going to answer that question.

Senator Wyden, do you have one?

RON WYDEN (D.-ORE.): I certainly wouldn’t talk about overturning precedent. What I am most concerned about is the developing area of the law known as end-of-life care.

Thanks. Senator Nelson, don’t you have legislation coming up on Kelo?

NELSON: Yes, we’re going to take care of that next week.

So, that’s not your No. 1?

NELSON: That’s not the question you asked.


What Supreme Court precedent would you most like to see Chief Justice Roberts overturn?

SEN. JEFF SESSIONS (R.-ALA.): [Laughter.] Well, I’m not going to speculate about that, but there are a number of cases that the Supreme Court has rendered, which are activist cases, which reflect the judges’ policy views and not the wording of the Constitution. All of them should be reversed in my opinion. And I think that’s a legitimate task for stability in certain areas. But if the decision is contrary to the Constitution and the judge takes an oath to the Constitution and does not take an oath to slavishly follow previous opinions, they should reverse that opinion.

OK. Do you want to point out any of these activist areas?

SESSIONS: Well, I have felt, for example, things like Roe, flag burning, the takings case, language in a lot of cases is very broad and overreaching, saying Congress can’t pass a law based on morality and language that jeopardizes traditional marriage. All of those are matters I think are unfounded in the Constitution. Another good one is the Constitution clearly provides for the death penalty. It has at least a half-dozen references to how you should conduct a death penalty. And I don’t think it’s a Supreme Court decision to say who should not be subjected to the death penalty. There are two cases dealing with mental capability and age, where they have struck down legislative-branch decisions, quoting in one case foreign law.

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