Supreme Court Justices Suggested Roe v. Wade Was Settled. They May Overturn It Anyway.

During Brett Kavanaugh’s Supreme Court confirmation hearing in 2018, Sen. Dianne Feinstein (D-Calif.) pressed him on whether he believed Roe v. Wade, the 1973 decision affirming a woman’s right to an abortion, was settled precedent.

The decision was “settled as a precedent of the Supreme Court,” Kavanaugh said, and was “entitled the respect under principles of stare decisis,” a judicial concept that favors the continuation of established precedent.

Kavanaugh went further, noting that Planned Parenthood v. Casey, a 1992 decision reaffirming abortion rights, amounted to “a precedent on precedent.”

“I understand the importance of the issue. I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” he said. “I do not live in a bubble. I understand. I live in the real world. I understand the importance of the issue.”

But Kavanaugh now appears to have reversed himself. And he isn’t alone.

Kavanaugh appears to have joined Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett in their readiness to overturn both the Roe and Casey decisions, according to a draft majority opinion leaked Monday to Politico. Supreme Court Chief Justice John Roberts confirmed the authenticity of the draft on Tuesday.

The draft opinion still may not end up being the final opinion of the court in the case of Dobbs v. Jackson Women’s Health Organization. But if it is, it would harshly illustrate the incredible phoniness of the judicial nomination process.

Kavanaugh isn’t the only justice to claim to understand the importance of upholding longstanding precedents ― like those granting abortion rights ― and then move to overturn them.

Alito, the author of the leaked draft opinion, described the rights affirmed in Roe v. Wade as an “important precedent of the Supreme Court” in his 2005 confirmation hearing. He also noted that “when a decision is challenged and it is reaffirmed,” as Roe was reaffirmed in Casey, “that strengthens its value as stare decisis.”

At the time, Sen. Arlen Specter (R-Pa.), a supporter of abortion rights, was the chair of the Senate Judiciary Committee. Specter claimed Alito said in private that if confirmed, he would judge precedents based on a “sliding scale” ― one that would favor precedents upheld multiple times by justices appointed by presidents from different political parties. Roe v. Wade fits this description perfectly.

These responses came after the disclosure of a 1985 memo written by Alito when he worked as a lawyer at the Department of Justice under President Ronald Reagan. That memo clearly stated his position on the subject: “The Constitution does not protect a right to an abortion.”

Alito’s friends and colleagues attested to what Alito himself would not say directly: that he would “respect” Roe’s grant of abortion rights as precedent.

“If what you’re thinking is ‘Would Sam overrule Roe?’ ― he would not,” then-Judge Leonard Garth, a judge on the 3rd Circuit Court of Appeals for whom Alito clerked from 1976 to 1977, told The Washington Post in 2005. “He might have restrictions and limitations, but it is a precedent he’d honor. As a previous mentor and as a present colleague, I don’t think he’ll overrule it.”

“I asked him whether it made a difference to him if he disagreed with the initial decision, but it had been reaffirmed several times since then. I was obviously referring to Roe in that question,” Sen. Susan Collins (R-Maine) told CBS News in 2005. “He assured me that he has tremendous respect for precedent and that his approach is to not overturn cases due to a disagreement with how they were originally decided.”

Collins’ remarks in 2005 are almost identical to those she made in 2017 and 2018, respectively, during the confirmation processes for Gorsuch and Kavanaugh.

Gorsuch called Roe v. Wade “the law of the land” and “a precedent of the United States Supreme Court” during his confirmation hearings.

At the time, Collins claimed that Gorsuch had told her: “A good judge always starts with precedent and presumes that the precedent is correct.”

As for Kavanaugh, Collins said in 2018 that she “talked [with him] about whether he considered Roe to be settled law,” and “he said that he agreed with what Justice Roberts said at his nomination hearing in which he said that it was settled law.”

Among recently nominated conservative justices, Barrett ― who was confirmed in October 2020 after the death of Justice Ruth Bader Ginsburg ― offered the least amount of public affirmation for Roe as a settled precedent.

She claimed that Roe v. Wade did not qualify as a “super-precedent,” akin to the rulings that banned racial segregation in schools, forbade bans on mixed-race marriages or gave the court the power to overturn laws. This is because the issue of abortion rights is still hotly politically contested, she said.

“Scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted,” Barrett said at her confirmation hearing.

And on an entirely different planet, there’s the response Thomas gave in his own confirmation hearing, in 1991 ― saying he didn’t recall having any conversations about the Roe ruling, which occurred while he was at Harvard Law School, and that he had no opinion of it at the time.

After all this trumpeting of their respect for precedent and stare decisis, the five conservative justices finally revealed their true intentions. Nothing about the practice of abortion in the United States has changed. The only thing that’s changed is the makeup of the court.

When Sen. Mitch McConnell (R-Ky.) refused to hold hearings on President Barack Obama’s Supreme Court nominee Merrick Garland, it kept a seat open on the court to be filled by the next president. This turned out to be Republican Donald Trump, who won the 2016 election despite losing the popular vote. That swapped Garland for Gorsuch. Justice Anthony Kennedy’s retirement opened the way for Kavanaugh. Then, Ginsburg’s death just before the 2020 election allowed Trump to place Barrett on the court.

The judicial confirmation process can now be seen for the farce it is. It doesn’t matter what nominees say about their views on “settled precedent.” In the end, the only thing that matters is who has the power to decide the law.