Senate Majority Leader Chuck Schumer and Speaker Nancy Pelosi, along with a host of other Democrats, are accusing the conservative justices of lying during their confirmation hearings about the importance of the precedent set by Roe v. Wade. The leaked draft opinion that would overturn Roe, they allege, proves the conservative justices misrepresented themselves to the Senate. Democratic lawmakers, journalists, and activists from comedian Stephen Colbert to MSNBC host Joy Reid to Rep. Pramila Jayapal to Sen. Elizabeth Warren have echoed the argument.
In a statement issued Tuesday, the Democratic leadership said, “Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.”
Rep. Ted Lieu of California similarly said, “Multiple Justices LIED about #RoeVWade in order to get confirmed. Their mendacious actions are shredding the institution of the Supreme Court. How can we trust opinions by the Court when multiple justices brazenly lied to the American people in order to ascend to their positions?”
Jayapal said on MSNBC Wednesday that the Supreme Court justices “lied under oath when they were testifying to Congress on this question.”
Warren took that one step further, suggesting that the justices’ supposed misdirection to the Senate should warrant prosecution. “What should be investigated and prosecuted,” she said, “is the fact that people who were nominated to the Supreme Court stood up and said they believed in the rule of law and precedent, and then at first opportunity, changed direction by 180 degrees and are going for a full repeal of Roe.”
Republican Sen. Susan Collins of Maine, who describes herself as pro-choice and voted to confirm Justice Neil Gorsuch and Justice Brett Kavanaugh, said the leaked opinion was “completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.” Collins has said that Kavanaugh repeatedly told her privately that he considered Roe to be “settled law.”
But this is all an overblown misunderstanding or — more likely — purposeful disregard of what the justices actually said. None of the justices lied. The justices simply stated that Roe v. Wade is the precedent of the Supreme Court — which it clearly is — and that they take that precedent seriously. Some also stated that as justices they would approach the issue without an agenda and make an impartial legal decision. There’s no reason to believe the justices didn’t do just that.
Consider the justices’ statements at their confirmation hearings that some Democrats allege to be lies.
Gorsuch said at his hearing in 2017, “Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It was reaffirmed in Planned Parenthood v. Casey in 1992 and in several other cases. So a good judge would consider it as precedent of the United States Supreme Court worthy as treatment of precedent like any other.”
Kavanaugh said at his hearing, “As a judge, it is an important precedent of the Supreme Court. By it, I mean Roe v. Wade and Planned Parenthood v. Casey. It’s been reaffirmed many times.” Later he said, “It’s settled as a precedent of the Supreme Court.”
Justice Amy Coney Barrett, meanwhile, said, “Roe v. Wade clearly held that the Constitution protected a woman’s right to terminate a pregnancy.”
Justice Samuel Alito, who authored the leaked majority opinion, said, “Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. The Supreme Court has reaffirmed the decision. When a decision is challenged and it is reaffirmed, that strengthens its value.”
For his part, Justice Clarence Thomas said, “I believe the Constitution protects the right to privacy. And I have no reason or agenda to prejudge the issue.”
Alito’s draft opinion would overrule Roe by arguing that there are factors in this case — such as the facts that Roe egregiously misinterprets the Constitution and is horrifically argued — that warrant overturning precedent. That is entirely consistent with taking Roe seriously as precedent. Alito’s opinion is simply a judgment that Roe and Casey’s flaws outweigh any reason to abide by the court’s usual practice of following precedent.
The draft opinion reaffirms the court’s commitment to stare decisis, the principle that directs judges toward following precedent as the normal course of action, saying that it “serves many valuable ends” such as protecting the interests of “those who have taken action in reliance on a past decision.”
Alito notes in the opinion that the court is not bound to follow precedent, saying that the Court has long recognized that stare decisis is “not an inexorable command.”
He argues that the principle of stare decisis is even less binding when it comes to interpreting the Constitution because interpreting the nation’s supreme law correctly is critically important. He says that stare decisis
“is at its weakest when we interpret the Constitution.” It has been said that it is sometimes more important that an issue “be settled than that it be settled right.” But when it comes to the interpretation of the Constitution — the “great charter of our liberties,” which was meant “to endure through a long lapse of ages” — we place a high value on having the matter “settled right.”
He points out that it is nearly impossible for the American people to correct a judicial error in interpreting the Constitution because of how difficult it is to amend the Constitution. “When one of our constitutional decisions goes astray,” he says, “the country is usually stuck with the bad decision unless we correct our own mistake.”
Alito notes three examples of constitutional decisions the Supreme Court has overturned: Brown v. Board of Education, which overturned the separate but equal doctrine; Adkins v. Children’s Hospital of D.C., which overthrew the ruling that there could not be a minimum wage for women; and West Virginia Board of Education v. Barnette, which threw out a decision from three years prior that schoolchildren could be compelled to salute the flag. Alito then includes three entire pages listing overturned Supreme Court precedents to bring attention to the fact that the Supreme Court has often overturned precedent and that doing so is well within the court’s purview.
Alito devotes a considerable portion of the opinion to arguing the factors for why precedent should be overruled in the cases of Roe and Casey. He notes that overruling precedent “is a serious matter” and that it is “not a step that should be taken lightly.”
“In this case,” Alito said, “five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”
To briefly summarize, Alito argues that Roe represents an egregious error in constitutional interpretation that cannot be allowed to stand, is horrifically reasoned, cannot be applied in a consistent manner because Casey’s undue burden standard is unworkable, and has distorted other legal doctrines, including those stemming from the First Amendment. In addition, Roe and Casey’s notions of reliance are entirely unsupported.
Alito notes that lawyers of all ideological backgrounds believe that Roe was wrongly decided. For instance, Alito says that abortion supporter and Yale constitutional scholar John Hart Ely “wrote that he ‘would vote for a statute very much like the one the Court end[ed] up drafting’ if he were ‘a legislator,’ but his assessment of Roe was memorable and brutal: Roe was ‘not constitutional law’ at all and gave almost no sense of an obligation to try to be.”
He concludes strongly:
The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates.
Democrats alleging the justices “lied” should note that a precedent of the court is not an “inexorable command.” Justices can take a precedent seriously and still overrule it.
Stephen Colbert raises a point worthy of consideration in his monologue in which he alleges the justices lied. “So,” he said, “if these folks believe that Roe v. Wade was so egregiously decided, why didn’t they tell the senators that during their confirmation hearing?”
The answer is the long-standing practice that judicial nominees do not answer questions on any potential future cases at confirmation hearings. Known as the Ginsburg Rule, the principle is that nominees must remain open-minded about any case that could come before them so that they can judge each case on concrete facts.
The late Justice Ruth Bader Ginsburg summed up the principle by saying, “A judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
The justices, therefore, could not ethically offer any indication of their current leanings on a potential case.
Someone could argue that Kavanaugh’s statement that Roe is “settled law” is slightly harder to square, but really, it simply means that Roe is precedent. As Alito notes, there is no such thing as a decision that is precluded from examination of whether or not it should be overruled. Roe is settled law — but soon it may no longer be.
Moreover, in her confirmation hearing Justice Elena Kagan said the exact same thing as Kavanaugh — that Roe is “settled law” — while noting that she would not comment on the merits of Roe because the court was likely to consider its “continued validity” in the “near future.” She said, “I do not believe it would be appropriate for me to comment on the merits of Roe v. Wade other than to say that it is settled law entitled to precedential weight.”
What those alleging the justices lied are really trying to do is undermine the legitimacy of the conservative justices and their potential ruling in Dobbs v. Jackson Women’s Health Organization. It’s all part of their effort to tear down the Supreme Court in order to force abortion on every state.