Unequal justice: Did five Supreme Court justices lie about abortion?
The Supreme Court's landmark decision in Dobbs v. Jackson Women’s Health Organization, issued last year, overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and dismantled the federal constitutional right to abortion. One of the lingering questions in the aftermath of Dobbs is whether any of the five justices who voted to take that drastic step lied about their views on abortion during their respective confirmation hearings before the Senate Judiciary Committee.
A strong argument can be made that each of them either lied or made materially misleading statements.
Alito authored the 5-4 majority opinion in Dobbs, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
He delivered the court’s holding in stark and aggressive terms: "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."
As any seasoned lawyer can attest, the phrase "egregiously wrong" when used by a justice in the normally dignified context of appellate litigation is the equivalent of a verbal smackdown. It's meant as an insult and a sign of contempt.
But contrast Alito's inflammatory language in Dobbs with his Senate confirmation hearing testimony in 2006.
In response to a series of questions about Roe and Casey posed by the late Arlen Specter, then a Republican Senator from Pennsylvania, Alito said:
"Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system, and it's the principle that courts in general should follow their past precedents, and it’s important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interest, and it's important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions….
Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions…and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis…."
Alito was confirmed by the Senate on January 31, 2006 by a vote of 58-42. His confirmation testimony about abortion can be viewed here.
Thomas not only joined Alito's majority opinion in Dobbs, but he also issued a separate concurrence in which he called upon his colleagues to revisit and overturn such privacy-based precedents as Griswold v. Connecticut (1965) on the right to contraception; Lawrence v. Texas (2003) on the right to engage in same-sex intimacy; and Obergefell v. Hodges, (2015) on the right to same-sex marriage.
Here's what Thomas had to say on these subjects at his 1991 confirmation hearing when questioned by Senator Patrick Leahy, Democrat of Vermont:
"Senator, I think that the Supreme Court has made clear that the issue of marital privacy is protected, that the State cannot infringe on that without a compelling interest, and the 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….
Senator, your question to me was did I debate [in law school or elsewhere] 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."
Thomas was confirmed on October 15, 1991 by a vote of 52-48. A portion of his confirmation hearing can be viewed here.
Replying to questions about Roe raised by Senator Charles Grassley, Republican of Iowa, Gorsuch testified in his 2017 confirmation hearing:
"I would tell you that 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 as treatment of precedent like any other."
Later in the hearing, questioned by Senator Diane Feinstein, Democrat of California, Gorsuch added:
"Part of the value of precedent [is] it has lots of value. It has value, in and of itself, because it is our history, and our history has value intrinsically. But it also has an instrumental value in this sense. It adds to the determinacy of law…. It is part of the reason why the rule of law in this country works so well."
Gorsuch was confirmed on April 7, 2017, by a vote of 54-45. His confirmation testimony can be seen here.
Kavanaugh wrote a concurring opinion in Dobbs, arguing, in contrast to Thomas, that overruling Roe would not threaten or "cast doubt" on the court's precedent decisions on contraception and marriage. He also claimed that Dobbs would not prevent states that recognize abortion rights from continuing to do so in the future.
Nonetheless, he concluded that when it comes to abortion, the "Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views."
He also, incredulously, compared Dobbs to Brown v. Board of Education (1954), the landmark decision that overturned Plessy v. Ferguson (1896), which upheld state-imposed racial segregation. In fact, Dobbs is more akin to Plessy, permitting states to gut abortion rights and establish a new regime of discrimination that denies pregnant people their right to reproductive freedom.
Kavanaugh took an entirely different tack on Roe and Casey in his confirmation hearing, remarking in a colloquy with Senator Feinstein:
"I will tell you what my view right now is. Which is, it [Roe] is an important precedent of the Supreme Court that has been reaffirmed many times. But then Planned—and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent."
Kavanaugh was confirmed on October 6, 2018 by a vote of 50-48. His exchange with Feinstein can be viewed here.
Amy Coney Barrett
Like the other justices who voted to overrule Roe and Casey, Barrett did her best to dodge inquiries about the constitutionality of abortion. However, in a telling back-and-forth with Feinstein about whether she would uphold abortion rights if confirmed, she declared:
"Senator, I completely understand why you are asking the question, but again, I can't pre-commit or say yes, I'm going in with some agenda, because I'm not. I don't have any agenda."
Barrett was confirmed on October 26, 2020, by a vote of 52-48. Her exchange with Feinstein can be viewed here.
Whether the five justices who scuttled Roe and Casey committed perjury or simply deployed their ample skills to avoid full disclosure, their auditions for lifetime appointments on the highest court in the land were an affront to the rule of law and the Constitution they are sworn to uphold. And that is something we should never let them forget.
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