Donald Trump's three Supreme Court nominees are exactly who we thought they were.
Last week's 5-4 decision by the court to let Texas' new anti-abortion law go into effect passed with the support of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. That's not really a surprise. Trump spent the 2016 presidential campaign promising conservatives he would appoint justices who would overturn Roe v. Wade. It's clear now that he kept his promise. The former president even took credit for the ruling in excerpts from a TV interview released on Sunday.
"We do have a Supreme Court that's a lot different than it was before," he said.
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Still, it's worth remembering that during their confirmation hearings, each justice — and, often, their supporters — danced around the question of how they might rule on the issue, giving noncommittal answers that sometimes sounded almost as though they accepted Roe as settled law.
Take Gorsuch. At his 2017 confirmation hearing, Sen. Dick Durbin (D-Ill.) asked if he accepted the precedent set by Roe. "That's the law of the land," Gorsuch said. "I accept the law of the land, senator, yes."
Kavanaugh gave a similarly vague response at his 2018 hearing. "As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade," he told a Senate hearing.
Coney Barrett, at least, gave a slightly more candid answer, telling senators in her confirmation that she didn't consider Roe a "super-precedent" too settled for the court to overturn. Those cases "are so well settled that no political actors and no people seriously push for their overruling," she said. "And I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category."
Even then, Trump tried to muddy the waters a bit on Coney Barrett's behalf. At a September 2020 debate with then-candidate Joe Biden, he disputed Biden's claim that abortion rights were "on the ballot" with Coney Barrett's nomination still up in the air at that point. "You don't know what her views are," Trump said.
But Coney Barrett's views were really never in doubt — and neither, it seems, is the eventual fate of Roe. So why did Trump and his nominees spend so much energy pretending otherwise?
Nominees from both parties make a habit of being vague during their confirmation hearings, of course. Justice Elena Kagan, for example, offered a powerful dissent from the court's ruling last week, but she was fairly careful about offering opinions during her 2010 confirmation hearing. Like most nominees, she dodged questions by saying she shouldn't pre-judge cases that might come before the court. "I think that — in particular, that it wouldn't be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court," she told senators.
One nominee who did get chatty with senators? Robert Bork, the arch-conservative who was nominated to the court by Ronald Reagan in 1987. "I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases," he told senators, and most observers agree he was true to his word. His nomination failed. Since then, nominees have been a lot more careful about answering questions.
It is probably also the case, however, that Republicans want some plausible deniability when it comes to ending abortion rights in America. While the anti-abortion cause is popular among the conservatives who make up the GOP's base, it's less so among the electorate at large. This is even true in red states: Voters in South Dakota and Mississippi rejected referenda to ban abortions in 2006 and 2011, respectively. That probably explains why many Republicans — who have campaigned against abortion for most of the last 50 years — have all but gone silent on the cusp of their greatest triumph. Fox News barely mentioned the topic during its morning coverage last Thursday, while most GOP members of Texas' congressional delegation also ducked questions.
Neither Republicans, nor conservative justices, can dodge this issue for very much longer. If the Supreme Court guts Roe, voters on both sides will notice. There will be very specific ramifications — to state laws, to the lives and decisions of women — that won't be papered over with fuzzy statements. The time for being vague is over.
