Feature

Did Supreme Court justices mislead on Roe during their confirmation hearings?

How much is a precedent worth?

On Sunday, as controversy over a leaked Supreme Court draft decision that would overturn Roe v. Wade (1973) continued to roil the nation, MSNBC host Ayman Mohyeldin proposed "investigating whether five justices on the Supreme Court lied during their confirmation hearings, under oath."

The five justices, all of whom voted to overturn Roe, Mohyeldin continued, "said something quite different about the original 1973 decision during those hearings." He then showed several clips in which the would-be justices said they regarded Roe as a precedent of the Supreme Court or acknowledged the existence of a constitutional right to privacy. The legal doctrine of stare decisis stipulates that judges should typically rule in accordance with precedent, though it does allow for precedent to be overturned in certain cases.

Notably, none of the clips show any of the justices saying that Roe could not be overturned or committing to upholding it.

Pro-choice Republican Sen. Susan Collins (Maine) also suggested that some of the justices had been less than truthful. The draft decision, she said in a statement, "rocks my confidence in the court" and was "completely inconsistent with what Justice Gorsuch and Justice Kavanaugh" — both of whom she voted to confirm — "said in their hearings and in our meetings in my office."

So, were they lying? Here's a selection of what Republican-appointed justices said about Roe, Planned Parenthood v. Casey (1992), and stare decisis during their confirmation hearings:

Amy Coney Barrett (2020)

"I don't have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come … I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors. And I promise to do that for any issue that comes up, abortion or anything else. I'll follow the law."

"I explained that the term 'super precedent' is used in academic work to refer to cases that are so well settled that no political actors and no people seriously push for overruling. Roe does not fall within that category, but that does not mean that Roe should be overruled."

Brett Kavanaugh (2018)

"Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it ... That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as Glucksberg and other cases. So that precedent on precedent is quite important as you think about stare decisis in this context."

"You have an open mind. You get the briefs and arguments. And some arguments are better than others. Precedent is critically important. It is the foundation of our system. But you listen to all arguments."

Neil Gorsuch (2017)

"Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So, a good judge will consider it as precedent of the U.S. Supreme Court worthy [of] treatment [as] precedent like any other."

Samuel Alito (2006)

"I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion."

"I agree that in every case in which there is a prior precedent, the first issue is the issue of stare decisis, and the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent."

"I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent."

"My Third Circuit record, in looking at abortion cases, provides the best indication of my belief that it is my obligation to follow the law in this area and in all other areas. If I had had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my Third Circuit cases."

John Roberts (2005)

Note: Chief Justice Roberts did not join Alito's draft opinion, but he did signal his willingness to uphold Mississippi's 15-week abortion ban while leaving Roe and Casey in place.

"[I]n the particular case of Roe, obviously you had the Casey decision in '92 ... in which they went through the various factors in stare decisis and reaffirmed the central holding in Roe while revisiting the trimester framework and substituting the undue burden analysis with strict scrutiny. So as of '92, you had a reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles."

"I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough — and the court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not."

Clarence Thomas (1991)

"[W]ithout commenting on Roe v. Wade, I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, in the liberty component of the due process clause."

"[T]he Supreme Court, of course, in the case of Roe v. Wade has found an interest in the woman's right to — as a fundamental interest — a woman's right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case."

"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

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