Stare decisis until it isn't
The Supreme Court on Tuesday verified the authenticity of a draft majority opinion overturning Roe v. Wade published by Politico on Monday night, but emphasized that the opinion, by Justice Samuel Alito, is neither the final opinion or the final position of any of the justices on the court. Still, according to Politico, at least four other justices agreed with Alito's opinion in February, suggesting it could be the new law of the land once published.
"Comments on abortion rights made by the recent conservative additions to the Supreme Court during their Senate confirmation hearings are under fresh scrutiny" after the leak, ABC News reports, reviewing some of the comments by the three judges appointed by former President Donald Trump — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. All of them affirmed Roe as an important precedent, though Barrett said it is not, in her view, a "super-precedent."
"If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office," Sen. Susan Collins (R-Maine) said Tuesday morning. Collins was the deciding vote on Kavanaugh's confirmation, and she has said he assured her in private that Roe was "settled law."
The Washington Post went to the vaults and compiled a video of relevant comments not just from Trump's justices but also the other two expected yes votes, Alito and Justice Clarance Thomas. Interestingly, Thomas said at his confirmation hearing, "I believe the Constitution protects the right to privacy," which Alito's draft opinion decidedly does not.