What is Settled Law?

Kevin Drum, noting that Judge Alito freely gave his views on Griswold v. Connecticut but has steadfastly resisted getting pinned down on Roe v. Wade asks, “Why is it OK to take a firm stand on some decisions but not on others? What’s the supposed algorithm here?

The supposed algorithm is “settled law.” That is, some cases have been on the books for long enough without any substantial challenge rising up against them as to be settled, however controversial they were at the time. Obvious examples would be Brown v. Board of Education (school desegregation) and Marbury v. Madison (establishing the right of the courts to strike down laws as “unconstitutional”).

I don’t know that there’s an algorithm for making that distinction, however. Roe, by virtue of the continued controversy surrounding it, is definitely not settled law. Is Griswold settled? While its text, making up the right to contraceptives via a right of privacy made up from emanations from penumbras is almost always quoted ironically, the basic idea that various provisions of the Constitution guarantee some degree of privacy is no longer controversial. The question is only where one draws the line.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Anderson says:

    Roe, by virtue of the continued controversy surrounding it, is definitely not settled law.

    Hm. Then why did John Roberts say it was, at his confirmation hearing?

    They were quoting that today on the radio, in contrast to Alito.

    It couldn’t be that Roberts was less than completely candid with the Senate, could it?

  2. Roberts indeed used the “settled law” phrasiology, which bothered me during his hearings. I’m no lawyer but I can appreciate a good semantics debate. I think Alito is inherently a more methodical and careful thinker and speaker, more semantically aware, while Roberts was more cocky and polished. For one thing, Alito is nearly the most experienced jurist to ever be nominated for the SCOTUS… Roberts only had, what, 3 years on the DC Circuit?

    I find it particularly interesting that Alito has answered nearly every question with no refusals due to a topic “coming before the bench”. At least that was the case up until mid-day today or so. His depth of knowledge of case law, not only his own but in general, has been astonishing. Establishing a precident? People might just start talking about future nominees doing an Alito rather than a Roberts, I predict.

  3. Moe Lane says:

    “It couldn’t be that Roberts was less than completely candid with the Senate, could it?”

    It couldn’t be that Roberts and Alito (and, for that matter, our host) have different opinions about what constitutes ‘settled law’*, could it?


    *Which, unless there’s an government agency that actually determines which court cases are or are not officially ‘settled law’, is easily the more reasonable explanation.

    Oh, I’m sorry: here you go.

  4. Jack Ehrlich says:

    Plessy V. Ferguson was settled law. Brown v. Board of Education reversed Plessy. Plessy had been law for around 60 years. SCOTUS is able to revisit any and all previous decisions made by the same.

  5. jb says:

    Look, it doesn’t really matter – it’s done. The good news here is that the Republicans now have one or more less issues to use in elections. They will have succeeded in stacking the court with their own “activist” judges leaving a very large hole in the grassroots motivation. Let’s just add this up; God – check, Guns – check, Gays – check. What are you going to do to bring out the religious right for the next election? They certainly are a large percentage of the vote for Republicans. Hmmm, let’s see, immigration – maybe, but many in the country don’t see it. Budget deficit – right. War on terror – haven’t been so successful. What exactly is going to motivate the rabid right to vote? Better talk to Melman, quick!

  6. Anderson says:

    Moe, I suppose I could respond with a link to a definition of “settled,” but that would seem … I dunno … obnoxious or something.

    The difference of opinion, if there is one, obviously would be as to the status of Roe. But I don’t really think that Roberts was being candid, so I took the shot.

  7. ken says:

    The question really is about our right to controll our own destinies. Do we have a right to privacy? It is not listed in the constitution, but then it doesn’t have to be. The ninth admendment clearly recognizes other, non listed, rights as having equal protection with those listed rights.

    Conservatives do not think individuals have a right to privacy. The rest of America thinks othewise, we recognize that individuals have a right to privacy.

    Since we do have the right to privacy it is just nuts to say that Roe vs Wade was not decided correctly. But then saying crazy things is what we expect of conservatives these days.

  8. Anderson says:

    Ken, to be accurate, conservatives *do* think we have a right to privacy … insofar as it’s delineated in the Third and Fourth Amendments.

    What liberals do is to infer, from bedrock theories of government, that the Ninth guarantees an umbrella (penumbrella?) right of privacy, some examples of which are expressly stated in the Bill of Rights (stuff that happened to be particularly on the minds of Americans in 1790 … quartering of soldiers, etc.).

  9. Moe Lane says:

    “…but that would seem … I dunno … obnoxious or something.”

    Well, either you were intending to be obnoxious all along, which would make further obnoxiousness appropriate as being part of the metanarrative, or else you weren’t, which would make your following obnoxiousness merely a reply to my obnoxiousness. So either way, I can’t say that you had anything to really lose by perpetuating further obnoxiousness.

    Mind you, if it was the latter than my footnote was over the top, and I apologize for it. I stand by the not-footnote parts, though; it’s not like there’s an official certification process, after all.

  10. Herb says:

    Settled Law does not seem to be the issue here. The term “settled law” is one used by the democrats to have their cake and eat it to. The dems want to have a guarantee that their vote grtting stand for Roe V Wade is not overterned and neither Roberts or Altio will give it to them.

    The dems inability to get a committment on “settled law” has them frustrated and totally beside themselves.

    Kennedy seems to be the leader (Ass) in the effort to “Get” Alito but has failed miserably and has taken him from his high and mighty perch to the point that rather than say “Oh My God” he now says “Oh My Me” in a last ditch effort to win a point or two.

  11. floyd says:

    jb, ken; what do you want,another breyer? his distain for the constitution borders on treason! also those of your ilk recoil at the sight of the cross like a vampire in an old B&W movie.get over it, and take responsibility for your own lives. i’m sure you won’t be happy until you get to celebrate your own “krystal nacht”.

  12. Settled law? There is no such thing. In a country like the United States, a country where even the Constitution can be amended, there is no such thing as settled law.

    No such thing.

    Roe v. Wade, freedom of speech, the right to keep and bear arms and all the rest can be overturned via the Constitutional amendment process. The very notion of settled law is, in fact, alien to the American system.

    Or so it seems to me.

  13. Anderson says:

    If there’s “no such thing,” or if it’s an evil Dem trick, then why did Roberts say it?

    No harm, no foul, Moe. And you need to drop in at ObWi; the liberal groupthink is making even me uneasy.

  14. Rick DeMent says:


    Oh I see, you’re much more comfortable with Conservative group think.

  15. Anderson says:

    Right, Rick. Because those are the only choices, aren’t they?

    One of my dad’s wiser statements was that it’s dangerous to read a book that you agree with too much. Same with websites. ObWi, much as I love its liberal posters, is suffering from an absence of Von & Sebastian on the front page.

  16. Moe Lane says:

    I have seen your request (and am not offended by it), Anderson, but my only public response towards anything involving Obsidian Wings since my departure from it is “No comment”.

  17. Why did Chief Justice Roberts use the term “settled law” when there is no such thing? I don’t know. Perhaps because it’s one of those nonsensical catch-phrases that goes around and that everyone uses, like “at the end of the day”.

    I submit that, regardless of who uses the phrase “settled law”, there is no such thing. As long as the Constitution can be amended, and as long as the Supreme Court can revisit any issue (Plessy v. Ferguson, anyone?) there will never be any such thing.

  18. Anderson says:

    Moe, I think you’re ready for your confirmation hearings! 😉

  19. Moe Lane says:


  20. Wayne says:

    Roberts wasn’t asked that question in his Supreme Court nomination. He was ask that question during a previous lower court confirmation hearing and then was ask to comment on his comment during his Supreme Court nomination. He gave pretty much the same answer during his Supreme Court nomination as Alito did. Sorry that I don’t have a link to it at this moment.

    Lower courts are suppose to go by what the Supreme Court has already decided and not make up their own interpretation of the Constitution.

  21. James Joyner says:

    Wayne: Not so. Yes, a quick Google search will give you a MediaMatters post making that point. Subsequent to that article, though, Roberts was asked that question pointedly by Arlen Specter and in his Chief confirmation hearings and he gave the “settled law” answer.

    See this post.

  22. Wayne says:

    I heard lots of he said she said comments. Without a link to the actual minutes from the Roberts Supreme Court confirmation, it is hard to know. Alito confirmation is recent enough for me to remember most of what he said. Most people paraphrases are generally wrong or misleading. Just watch the comments after a Presidential debate to see that.

  23. James Joyner says:

    Wayne: Here’s the transcript.

    The relevant passage:

    SPECTER: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it’s 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?

    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 a precedent of the court, yes.

    SPECTER: You went on then to say, quote, “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.

    ROBERTS: I think the initial question for 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.

    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 have been questions 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, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, “I do not speak for my church on public matters and the church does not speak for me,” close quote?

    ROBERTS: I agree with that, Senator. Yes.

    SPECTER: And did you have that in mind when you said, “There’s nothing in my personal vies that would prevent me from fully and faithfully applying the precedent, as well as Casey”?

    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.

  24. Wayne says:


    I appreciated you refreshing my memory. I would agree with Roberts and Alito that the courts considered “it” settle law of the land and have been reaffirm. That is a simple statement of history. Does that mean it can never be revisited or another case wont have a conflicting issue that ends up for the most part overturning the precedent? No. It would take more effort than if Roe vs. Wade never exist. However, I see nothing in either man statement that would prevent them from doing so. Would they take into account any previous rulings? Absolutely and they should but that doesn’t mean they won’t make up their own minds instead of deferring solely to the judgments of previous Judges. The statements made during their hearings should be look upon using legal mentality and not in layman mentality.
    Personally, I believe Roe vs. Wade should be revisited so the legal arguments on both side can be laid out again regardless of the outcome. It would make for an interesting debate.