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.
