Justice Stevens on "super stare decisis" and whether it's believable that Clarence Thomas did not talk about Roe v. Wade when he was a law student.

I'm watching C-Span's coverage of Justice Stevens at the Ninth Circuit Court of Appeals conference in Honolulu (from July 19, 2007). He's asked about the term "super stare decisis," which came up in the confirmation hearings for Chief Justice Roberts and Justice Alito.

Stevens says:

Well, I wasn't particularly persuaded by that suggestion. I think, after all -- he's talking about Roe against Wade there and so forth -- and I think there are powerful stare decisis arguments there, but it's also true that that has been a controversial decision in recent years.

Interestingly, though, it was decided just two or three years before I went on the Court, and at the time, I was not asked a single question about that issue, because it was not then controversial. That's quite interesting. It was a 7 to 2 decision, a sort of fairly routine decision at the time.

I remember during the confirmation hearings for Justice Thomas he was asked about his discussions in law school about that case, and he said he didn't remember having any, and that people thought, well, he's not being forthright. Well, he was being absolutely honest, because I remember, at that time, it was not something law students generally talked about. It was considered a fairly settled, noncontroversial matter.

It became more and more controversial as the years have gone on.

I don't like the way he strayed from the question. Why wasn't he persuaded by the "super stare decisis" idea? But -- I think at first -- it's nice to hear him back up Justice Thomas's credibility on an issue that he's been scoffed at for so many years.

And then I think: Was it really true that Roe v. Wade was not controversial at the time, that law students didn't talk about it when it came out? I remember -- as a young woman who worried a lot about pregnancy back then -- being floored when the Supreme Court came out and said I had a right to an abortion. It hadn't been that long ago that we'd had to think about traveling to Sweden if we needed an abortion, and the ability to go to New York for the procedure was quite new. Suddenly, it was not only not a crime anymore, it was a constitutional right. I experienced that as astounding.

But maybe if you were already initiated into the law -- I was a college student -- it would have seemed obvious and ordinary -- just another step down what was a predictable path. Stevens says so, and in saying so he backs up Thomas.

Ah! But see the cleverness of saying that now? Stevens seems to forget the question about super stare decisis, but did he forget? Or did he see a way to entrench Roe more securely than if he'd talked about the term super stare decisis? He shifted to talking Justice Thomas. He backed up his antagonist on the Court on an issue over which Thomas has suffered long and bitter attacks. But the way he found to support Thomas entailed the notion that Roe was a secure and clear articulation of the law in its time -- an easily perceived detail in the coherent fabric of the law.

Stevens leans back in his chair. He's an old man wearing a pink short-sleeved shirt, big outdated glasses, and a Hawaiian lei. Who can notice that he's just made a deft rhetorical move? Well played, Justice Stevens!