What Gorsuch, Kavanaugh and Barrett Said About Roe at Confirmation Hearings

By  and  (05/10/2022)

In the wake of the leaked Supreme Court draft opinion that indicates the court could overturn Roe v. Wade, some lawmakers have charged that conservative Supreme Court justices led them astray during Senate confirmation hearings. We’ll look at what the three most recent conservative justices had said about Roe.

The draft opinion, written by Justice Samuel Alito, reportedly had the support of Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, according to Politico, which published the draft on May 2. The latter three of those justices were all nominated by then-President Donald Trump. The court has confirmed the authenticity of the draft, but said it didn’t represent “the final position” of any justice.

Democratic Sen. Kirsten Gillibrand told CNN that conservative justices “misled the Senate, with the intention of getting their confirmation vote, with the intention of overruling Roe.” She added that “they would purposefully create the impression that they would not overrule settled precedent, and that it was not only deserving of due weight and the importance of precedent, but because it had been reaffirmed, that it deserves more weight.”

Democratic Rep. Ted Lieu said in a May 7 tweet: “Multiple Supreme Court Justices lied during their confirmation process about their view of #RoeVWade and stare decisis. Those are the facts.” (Stare decisis, Latin for “to stand by things decided,” is a legal doctrine that courts generally follow when ruling on a similar case.)

Republican Sens. Susan Collins and Lisa Murkowski, both supporters of abortion rights, also have said the opinion goes against what justices had said.

Collins, who voted to confirm Justices Gorsuch and Kavanaugh, said in a May 3 statement: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”

Murkowski, who had backed Gorsuch and Barrett, told NBC News: “If the decision is going the way that the draft that has been revealed is actually the case, it was not—it was not the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”

A close examination of the carefully worded answers by the three Trump appointees, however, shows that while each acknowledged at their hearings that Roe was precedent, and should be afforded the weight that carries, none specifically committed to refusing to consider overturning it.

Gorsuch

Gorsuch’s Senate confirmation hearing was held in March 2017 — early in Trump’s presidency, after Senate Republicans had refused to hold hearings on Merrick Garland, President Barack Obama’s nominee to fill the seat of Justice Antonin Scalia, who died in February 2016.

Gorsuch said that the Roe decision was “precedent,” but declined to call it “super precedent,” a loosely defined term indicating a deeply rooted, repeatedly upheld precedent. He also declined to give his opinion on whether he thought the court’s ruling was correct.

In response to questioning by Republican Sen. Chuck Grassley, Gorsuch said he would not be a fair judge if he started “telling you which are my favorite precedents or which are my least favorite precedents.”

Grassley, chairman of the Senate Judiciary Committee: I think the case that most people are thinking about right now and the case that every nominee gets asked about, Roe v. Wade, can you tell me whether Roe was decided correctly?

Gorsuch: Senator, again, 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.

Grassley: What about Griswold, which was decided a few years before Roe, the case where the Court found constitutional right to privacy? Can you tell me your views on Griswold?

Gorsuch: Senator, it is a precedent that is now 50 years old. Griswold involved the right of married couples to use contraceptive devices in the privacy of their own home. And it is 50 years old. The reliance interests are obvious. It has been repeatedly reaffirmed. All very important factors again in analyzing precedent.

Grassley: Well, I think I am going to stop questioning, but I would kind of sum up what you and I just talked about in regard to precedent so everybody understands the principles that are at stake here. There are two reasons why you cannot give your opinion on these cases. One, I believe, is independence, and the other one is fairness to future litigants. Is that the way you see it?

Gorsuch: It is, senator. If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view precedent in that fashion, I would be tipping my hand and suggesting to litigants that I have already made up my mind about their cases. That is not a fair judge. I did not want that kind of judge when I was a lawyer, and I do not want to be that kind of judge now. And I made a vow to myself I would not be. That is the fairness problem. And then the independence problem. If it looks like I am giving hints or previews or intimations about how I might rule, I think that is the beginning of the end of the independent judiciary, if judges have to make, effectively, campaign promises for confirmation. And respectfully, senator, I have not done that in this process, and I am not about to start.

During questioning by Democratic Sen. Dianne Feinstein, Gorsuch talked about the value of precedent and declined to agree with her that Roe was “super precedent.”

Feinstein: Since we are on Roe, I was not going to begin with this, but I well recall the time we spent in my office, and we talked about precedent. And in my opening remarks, I indicated that if anything had super precedent, Roe did in terms of the numbers, and I have put that in the record. Here is why it becomes of concern. The president said that he would appoint someone who would overturn Roe. You pointed out to me that you viewed precedent in a serious way, in that it added stability to the law. Could you elaborate on the point that you made in my office on that?

Gorsuch: I would be delighted to, senator. Part of the value of precedent, 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. We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can—people can anticipate and organize their affairs. It is part of the reason why the rule of law in this country works so well. We have statutes. We have rules. We have a fact-finding process and a judicial system that is the envy of the world. And precedent is a key part of that because, as the chairman pointed out when he quoted an old piece of mine, 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. And senator, the value of that is the U.S. Supreme Court takes something like 70 or 80 cases a year. That is a tiny fraction of all the disputes in our federal legal system, right?

Feinstein: Right.

Gorsuch: My law clerks tell me it is something like .001 percent, and they are unanimous in those cases, which have divided circuit judges. That is why the Supreme Court largely takes the case, because it has divided us. It is one of the rare cases where we disagree. They are unanimous 40% of the time.

Feinstein: One other question.

Gorsuch: Sure.

Feinstein: Do you view Roe as having super precedent?

Gorsuch: Well, senator, super precedent is——

Feinstein: In numbers?

Feinstein: It has been reaffirmed many times. I can say that.

Democratic Sen. Dick Durbin asked Gorsuch about a line in his book on euthanasia and how it might relate to abortion.

Durbin: There is a statement which you made in that book, which has been often quoted, and I want to make sure that I quote it accurately here today. … And I quote, “The intentional taking of human life by private persons is always wrong.” …

How could you square that statement with legal abortion?

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment, and the book explains that.

Durbin: Do you accept that?

Gorsuch: That is the law of the land. I accept the law of the land, senator, yes.

Democratic Sen. Richard Blumenthal also tried, to no avail, to get Gorsuch to say whether he agreed with the decision in Roe.

Blumenthal: Do you agree with the result in Roe v. Wade and Planned Parenthood v. Casey?

Gorsuch: Senator, I am drawing the same line that Justice Ginsburg drew, Justice O’Connor drew, Justice Souter, Justice Scalia. Many, many, many people who have sat at this confirmation table have declined to offer their personal views to this or that precedent, whether it is one side’s favorite or another side’s favorite, one side’s least favorite, the other side’s least favorite. We have gone back and forth today on precedents, which ones people like and do not like. And I understand that every citizen and every member of the Senate have their precedents that they prefer personally and not. I understand that. I respect that. That is part of the process and our First Amendment liberties. But as a judge, as a judge, my job is to decide cases as they come to me. And if I start suggesting that I prefer or not, dislike this or that precedent, I am sending a signal, a hint, a promise, a preview, as Justice Ginsburg called it, about how I would rule in future cases where those principles from that case are going to be at issue, and all of these cases that we just discussed that are very alive with controversy, as you know, senator, which is why you are asking about them.

And for a judge to start tipping his or her hand about whether they like or dislike this or that precedent would send the wrong signal. It would send the signal to the American people that the judge’s personal views have something to do with the judge’s job. And the one thing I have tried to convey over the last three days is that I do not believe that is part of the judicial function, and I do not believe that is what good judges do. And I have also said, senator, and I believe this firmly, that once a judge starts committing, promising, hinting, previewing, forecasting, agreeing or disagreeing with precedent at this confirmation table, we are in the process then of campaign promises, and we are in that process, Senator, I fear, of judges having to make commitments, tacit promises, hints, previews, as Justice Ginsburg called it, in order to become confirmed. And once we do that, I am fearful for the independence of our judiciary.

Kavanaugh

At the time of his confirmation hearings in early September 2018, Kavanaugh, who replaced a retiring Justice Anthony Kennedy, was seen by abortion rights advocates as the potential deciding vote in a future case to overturn Roe v. Wade.

During questioning, Kavanaugh avoided answering whether Roe v. Wade was correctly decided, or how he might rule in a future case challenging that court ruling. Instead, Kavanaugh repeatedly said that Roe v. Wade was “settled as precedent.”

Feinstein brought up news reports that Kavanaugh told Collins in an August 2018 private meeting that Roe v. Wade was “settled law.” When Feinstein asked Kavanaugh to explain what he meant by that, he said:

Kavanaugh: Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors. That was the question presented in the case.

At another point, Feinstein asked Kavanaugh if he agreed with former Justice Sandra Day O’Connor “that a woman’s right to control her reproductive life impacts her ability to, quote, ‘participate equally in the economic and social life of the Nation.’”

In response, he said:

Kavanaugh: Well, as a general proposition, I understand the importance of the precedent set forth in Roe v. Wade. So Roe v. Wade held, of course, and it reaffirmed in Planned Parenthood v. Casey, that a woman has a constitutional right to obtain an abortion before viability, subject to reasonable regulation by the state up to the point where that regulation constitutes an undue burden on the woman’s right to obtain an abortion.

And one of the reasons for that holding, as explained by the court in Roe, and also in Planned Parenthood v. Casey more fully, is along the lines of what you said, Sen. Feinstein, about the quote from Justice O’Connor. So that is one of the rationales that undergirds Roe v. Wade. It is one of the rationales that undergirds Planned Parenthood v. Casey.

Feinstein also asked Kavanaugh about an email he sent in March 2003 while working in the George W. Bush administration. In the message, in which he replied to an email that included a draft of an op-ed written to defend some of Bush’s judicial nominees, Kavanaugh wrote: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”

“This has been viewed as you saying that you don’t think Roe is settled,” Feinstein said, after reading part of the email aloud during the hearing. “So please, once again, tell us why you believe Roe is settled law, and if you could, do you believe it is correctly settled?”

Kavanaugh again called Roe “an important precedent” that “has been reaffirmed many times”:

Kavanaugh: In that draft letter, it was referring to the views of legal scholars, and I think my comment in the email is that might be overstating the position of legal scholars, and so it was not a technically accurate description in the letter of what legal scholars thought. At that time, I believe Chief Justice Rehnquist and Justice Scalia were still on the court at that time.

But the broader point was simply that I think it was overstating something about legal scholars. And I am always concerned with accuracy, and I thought that was not quite accurate description of legal, all legal scholars because it referred to “all.”

To your point, your broader point, 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. In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe.

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.

But Kavanaugh also told Republican Sen. Lindsey Graham that he would be open to hearing arguments if a particular case needed to be “revisited.”

“Of course. I listen to all arguments,” Kavanaugh said. “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.”

Barrett

The third and final of Trump’s Supreme Court nominees, Amy Coney Barrett, was upfront about her history of supporting the Catholic Church’s teaching on “the sacredness of life from conception to natural death.” And she was noncommittal during Senate confirmation hearings in October 2020 about whether she might overturn Roe v. Wade.

Barrett most directly addressed the issue under questioning from Feinstein, who noted that in Planned Parenthood v. Casey — the 1992 decision reaffirming Roe — Justice Scalia “joined the dissent, which took the position, and I quote, ‘We believe that Roe was wrongly decided and that it can and should be overruled, consistent with our traditional approach to stare decisis in constitutional cases.’ Do you agree with Justice Scalia’s view that Roe was wrongly decided?”

Barrett said in the hearings that she shared Scalia’s judicial philosophy of “originalism and textualism,” but she declined to give an opinion on that specific case.

“I think in an area where precedent continues to be pressed and litigated, as is true of Casey, … it would actually be wrong and a violation of the canons for me to do that as a sitting judge,” she said. “So if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another in a pending case.”

Pressed again by Feinstein whether she “agree[d] with Justice Scalia’s view that Roe was wrongly decided,” Barrett again declined to answer.

“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,” Barrett said. “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.”

Barrett said that if a question about overturning Roe or Casey or any other case comes before her, “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.”

Under questioning from Democratic Sen. Amy Klobuchar, Barrett said she did not consider Roe v. Wade to be a “super precedent,” at least not according to her definition of it as “cases that are so well settled that no political actors and no people seriously push for their overruling.”

“And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category,” Barrett said. “And 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 and doesn’t call for its overruling.”

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