After Friday’s Supreme Court ruling overturning Roe v. Wade, lawmakers who support abortion rights argued that some of the justices who voted in the majority opinion misled senators during their confirmation process.
“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me,” said Sen. Susan Collins, R-Maine.
The future of the landmark Roe decision has long been a topic of Supreme Court confirmations.
All six Supreme Court judges who voted to uphold the Mississippi law at the center of Friday’s decision were asked about Roe v. Wade during their confirmation hearings. The three justices appointed by President Donald Trump, in particular, were interrogated at length, as he had vowed as a candidate to appoint judges who would overturn Roe.
The judges often said they would broadly respect legal precedents — a doctrine called stare decisis — but declined to opine on abortion rights cases specifically. Some even outlined considerations for breaking with past precedents, too.
Here’s what the justices actually said in each of their confirmation hearings.
Justice Amy Coney Barrett
In her 2020 hearing, Barrett was pressed on why she would characterize Brown v. Board of Education, but not Roe V. Wade, as super precedent.
“Roe is not a super precedent because calls for its overruling have never ceased, but that does not mean that Roe should be overruled. It just means that it doesn’t fall on the small handful of cases like Marbury v. Madison and Brown v. The Board that no one questions anymore,” she said.
Justice Brett Kavanaugh
In his 2018 confirmation hearing, Kavanaugh was questioned repeatedly about Roe and Casey.
“It is important precedent of the Supreme Court that has been reaffirmed many times,” Kavanaugh said of Roe. “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.”
Sen. Dianne Feinstein, D-Calif., pressed him to say it was settled law, but Kavanaugh declined to say so by arguing it would diminish the independence of the judiciary. When questioned by conservative senators, though, he said there’s a model for overruling settled precedents, that begins with evaluating whether the prior decision was “grievously wrong.”
“You follow the decision that has been set forth by the Supreme Court, subject to the rules of stare decisis. And you see that time and again. That is part of stability. That is part of predictability. That is part of impartiality. That is part of public confidence in the rule of law that it is not just going to move pillar to post, that the law is stable and foundational,” he said. “Again, it is not — Brown v. Board shows it is not absolute. And that is a good thing, but it is critically important to the impartiality and stability and predictability of the law.”
Justice Neil Gorsuch
Gorsuch, in 2017, would only characterize Roe as “a precedent of the U.S. Supreme Court” reaffirmed by several subsequent cases. He went on to say that precedent fills out U.S. law.
“Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward,” he added.
Justice Samuel Alito
Alito, pressed in his 2006 confirmation hearing on whether overturning Roe would undermine the legitimacy of the court, would only say 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.”
He went on to joke about the level of precedent the abortion rights cases had earned, when asked whether Casey was a “super precedent or a super stare decisis.”
“I personally would not get into categorizing precedents as super precedents or super-duper precedents, or any —” he began, before Sen. Arlen Specter, R-Penn., interrupted to confirm he said “super duper,” a question that was met with laughs.
“Any sort of categorization like that,” Alito continued, “sort of reminds me of the size of laundry detergent in the supermarket.”
Justice Clarence Thomas
Asked whether the Constitution protects a woman’s right to choose during his 1991 confirmation hearing, Thomas said that taking a position “would undermine my ability to be impartial.”
He went on to say he did not have “a personal opinion on the outcome in Roe v. Wade.”
Chief Justice John Roberts Jr.
Roberts tried to strike a middle ground in Friday’s decision, joining the majority in upholding the Mississippi law that would ban abortion but saying he did not agree with completely overturning Roe.
During his 2005 confirmation hearing, Roberts said that overruling precedent like Roe is “a jolt to the legal system” and that “precedent plays an important role in promoting stability and evenhandedness.”
He continued: “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, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis,” he said.