Talking Points

Why the Ketanji Brown Jackson hearings are really all about Roe v. Wade

The confirmation hearings for Supreme Court nominee Ketanji Brown Jackson got to the point on Tuesday. President Biden's pick was asked for her thoughts on Roe v. Wade, the 1973 decision that legalized abortion throughout the United States, and Planned Parenthood v. Casey, the 1992 ruling that upheld its core with some modifications.

Jackson cleverly invoked two of former President Donald Trump's appointees to the high court, justices Brett Kavanaugh and Amy Coney Barrett, in telling the Senate Judiciary Committee that she agreed with them "Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy."

It's an evasion, to be sure, but one that lets liberal Supreme Court nominees be a little more honest than their conservative counterparts about how they would vote on abortion if confirmed. Biden pledged during the 2020 campaign to nominate a justice who would defend abortion rights.

Most voters who care deeply about the Supreme Court on both sides view it chiefly as a social issues super legislature. They expect their senators to vote, and their president to select, accordingly. The most important and enduring of those social issues is abortion, which remains as polarizing as when the justices first tried to "settle" it almost 50 years ago.

Since the defeat of Robert Bork's nomination in 1987 and subsequent close votes in favor of justices Clarence Thomas and Kavanaugh, Democrats have sought to keep anti-Roe justices off the court. Republican presidents have been less consistent on this issue than Democratic chief executives, leaving the court perennially at least one vote short of overturning Roe. The last time the liberal abortion precedent was seriously challenged, four of the five votes to uphold it came from Republican appointees (as well as three of the four votes against Casey). One of President Ronald Reagan's picks, Justice Anthony Kennedy, wrote the opinion.

Every controversy about the personal character or judicial philosophy of the nominees has, to some extent, been related to abortion for decades. Paradoxically, Jackson may be confirmed to a court that gets out of the abortion policymaking business, however temporarily, with a decision this summer sending the issue back to the states. Her confirmation wouldn't alter the 6-3 conservative majority.

If Roe survives again, expect it to remain the subtext of each round of grilling the next Supreme Court prospect receives.