For decades, nominees to the Supreme Court have had to answer questions about Roe v. Wade, the landmark 1973 ruling guaranteeing the right to abortion in the U.S., which now appears to be on the brink of being overturned.
That includes the five conservative justices who are reportedly prepared to overturn Roe this summer, according to a draft majority opinion published Monday by Politico.
Now, some of those justices are being accused of lying in their confirmation hearings — including by House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, who both criticized the draft in a scathing statement late Monday.
“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate,” the two Democratic leaders wrote, calling the reported decision to overturn Roe “an abomination, one of the worst and most damaging decisions in modern history.”
The draft, whose authenticity has since been verified by the court, was authored by Justice Samuel Alito. Politico reported that he would be joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Politico did not report how Chief Justice John Roberts plans to vote.
As nominees, those justices consistently avoided direct statements about Roe, including whether they’d vote to overturn it. Instead, they often commented on the importance of precedent and constitutional guarantees to privacy.
Here’s what each of the court’s five conservative justices who are reportedly prepared to overturn Roe said about the case at their confirmation hearings:
“Roe was egregiously wrong from the start,” Alito writes in the draft opinion.
Alito came to his nomination by President George W. Bush with years of experience as a federal judge. In his judicial career, he ruled several times on cases related to abortions, typically in favor of restricting them.
During his confirmation hearing, which took place in January 2006, Alito declined to say much directly about Roe. He called it an “important precedent of the Supreme Court” but stopped short of calling it settled law.
“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,” he said. “It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels.”
Pressed by Sen. Dianne Feinstein, D-Calif., on whether the issue of Roe had been settled by the court, Alito again refused to answer directly.
“It would be wrong for me to say to anybody who might be bringing any case before my court, ‘If you bring your case before my court, I’m not even going to listen to you. I’ve made up my mind on this issue. I’m not going to read your brief. I’m not going to listen to your argument. I’m not going to discuss the issue with my colleagues. Go away — I’ve made up my mind,’ ” he said.
“That’s the antithesis of what the courts are supposed to do, and if that’s what settled means, then I think that’s not what judges are supposed to do.”
During his confirmation hearing in 1991, Thomas refused to state an opinion on abortion or whether Roe had been properly decided. Doing so could compromise his future ability to rule on cases related to Roe, he said. (“I can say on that issue and on those cases I have no agenda. I have an open mind, and I can function strongly as a judge.”)
“I think those of us who have become judges understand that we have to begin to shed the personal opinions that we have. We tend not to express strong opinions so that we are able to, without the burden or without being burdened by those opinions, rule impartially on cases,” he said.
Thomas also said it would be inappropriate for any judge, including himself, to take a case on an issue “in which he or she has such strong views that he or she cannot be impartial.”
“You have to listen. You have to hear the arguments. You have to allow the adversarial process to think. You have to be open. And you have to be willing to work through the problem. I don’t sit on any issues, on any cases that I have prejudged. I think that it would totally undermine and compromise my capacity as a judge,” he said.
Sen. Howard Metzenbaum, D-Ohio, asked Thomas about the dangers of illegal abortions, “the kinds of abortions where coat hangers are substitutes for surgical instruments.”
Thomas responded: “If a woman is subjected to the agony of an environment like that, on a personal level, certainly, I am very, very pained by that. I think any of us would be. I would not want to see people subjected to torture of that nature.”
Gorsuch was then-President Donald Trump’s first nominee to the Supreme Court, chosen after Trump vowed during his presidential campaign to put “pro-life justices on the court” with the explicit goal of overturning Roe.
During Gorsuch’s confirmation hearing in early 2017, he refused to take a position on Roe. He told Sen. Lindsey Graham, R-S.C., that he “would have walked out the door” had Trump asked him to overturn Roe.
Gorsuch took the uncontroversial line that Roe is a precedent. Precedent is the “anchor of law,” he said. “It is the starting place for a judge.”
“I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed,” he said. “A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
One telling exchange came with Sen. Dick Durbin, D-Ill., who asked about a book Gorsuch wrote in 2006 advocating against legalizing assisted suicide.
In the exchange, Gorsuch acknowledged that the Supreme Court had held that a fetus is not a person for the purposes of the 14th Amendment’s due process clause, a legal underpinning of Roe v. Wade.
“Do you accept that?” asked Durbin.
“That is the law of the land. I accept the law of the land, senator, yes,” Gorsuch replied.
With Justice Ruth Bader Ginsburg then still alive in 2018, Kavanaugh was seen as the potential deciding vote on a future case challenging Roe. He was asked repeatedly, by Democrats and Republicans alike, to comment on the decision and how he might rule.
“Judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution as we see them compel the results,” he said in his opening remarks.
In particular, much was made of a private meeting between Kavanaugh and Sen. Susan Collins, R-Maine, who said the nominee had told her he considered Roe to be “settled law.”
But Kavanaugh stopped short of repeating that line in his hearing, instead focusing on Roe‘s status as Supreme Court precedent.
“It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis,” he said. “The Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.”
Additionally, Kavanaugh said it can be appropriate for the court to revisit prior decisions. “I listen to all arguments,” he 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 was nominated by Trump to fill the seat left by the death of Ginsburg in September 2020. Her confirmation hearing was held in October 2020, just weeks before the presidential election.
Like the justices before her, Barrett declined to say outright whether she believed Roe had been correctly decided. “I can’t pre-commit or say, ‘Yes, I’m going in with some agenda,’ because I’m not,” she said.
“Judges can’t just wake up one day and say I have an agenda — I like guns, I hate guns, I like abortion, I hate abortion — and walk in like a royal queen and impose their will on the world,” Barrett said in response to a question about District of Columbia v. Heller, a landmark Second Amendment ruling.
But she added that legal challenges to precedents can make their way through the courts back to the Supreme Court, where major rulings can then be revisited.
Perhaps the most revealing moment for Barrett came as she was being questioned by Sen. Amy Klobuchar, D-Minn., who asked if Barrett considered Roe to be a “super-precedent.”
Barrett answered by defining super-precedent 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,” she said.
“Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn’t mean that Roe should be overruled. It just means that it doesn’t fall in the small handful of cases like Marbury v. Madison and Brown v. Board that no one questions anymore,” she added.
Politico reports that Chief Justice John Roberts has not decided which way he’ll vote.
At the time of his nomination in 2005, Roberts was seen by liberals as a threat to Roe, in part because of his work as a Justice Department lawyer in the administrations of Presidents Ronald Reagan and George H.W. Bush.
During his confirmation hearing, Roberts repeatedly declined to comment on Roe beyond saying he believed it was “settled as a precedent of the court.”
For the court to overturn a prior decision, Roberts said he thought it was not sufficient to believe the case had been wrongly decided. The justices would have to consider other factors too, he said, “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.”
“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness,” he said then.
Some abortion-rights activists have worried that a decision to overturn Roe v. Wade could lead to an erosion of other related rights — like women’s access to birth control, which was first established in a Supreme Court decision called Griswold v. Connecticut.
“I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that,” Roberts said in 2005, adding that he felt “comfortable” commenting on the case because “it does not appear to me to be an area that is going to come before the court again.”
: May 2, 2022
An earlier version of this story misspelled Sen. Lindsey Graham’s first name as Lindsay.