I’m focusing specifically on Roe v. Wade, the 1973 decision validating women’s right to abortion. Republicans know full well that their position on this issue — that Roe should be overturned so states can begin outlawing abortion — is terribly unpopular. In polls, about two-thirds of Americans say Roe should remain the law of the land. But overturning Roe is conservative dogma. So when there’s a nominee for the high court, everyone on the right agrees that once again they have to distort, dissemble and deceive if they’re to succeed in getting their nominee confirmed.
Let’s start with a brief tour of history before we get to what’s happening right now. The template for Republican nominees was set decades ago, and it goes like this: No matter what the senators ask during your confirmation hearings, you must do two things. First, refuse to answer anything too specific about Roe, citing the need to stay objective for future cases. Second, give hints that, no matter what you’ve said or how you’ve ruled in the past, you might be willing to uphold it, even if that idea is utterly preposterous. Here are some examples:
- Antonin Scalia (1986): “I assure you, I have no agenda. I am not going onto the court with a list of things that I want to do. … There are doubtless laws on the books apart from abortion that I might not agree with, that I might think are misguided, perhaps some that I might even think in the largest sense are immoral in the results that they produce. In no way would I let that influence my determination of how they apply.”
- Clarence Thomas (1991): “I believe the Constitution protects the right to privacy. And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue. … Senator, your question to me was did I debate 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.”
- John G. Roberts Jr. (2005): “Well, beyond that, [Roe v. Wade is] settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.”
- Samuel A. Alito Jr. (2006): “That [a document in which he declared that the Constitution provides no right to abortion] was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.”
- Neil M. Gorsuch (2017): “I’m not in a position to tell you whether I’d personally like or dislike any precedent. That’s not relevant to my job … Precedent … deserves our respect. And to come in and think that just because I’m new or the latest thing I’d know better than everybody who comes before me would be an act of hubris.”
In contrast, when the liberal justices were asked the same question in their confirmation hearings, they were perfectly forthright, saying that yes, under the Constitution there is a right to abortion and they’d vote to uphold Roe.
What’s perhaps most remarkable is that everyone understands that all these conservative justices would absolutely overturn Roe if they got the chance, yet somehow this dance of the seven veils they do in their confirmation hearings is accepted not as an act of deception but just what we should expect, or at worst treated as clever gamesmanship.
It’s not just the nominees themselves. Republicans at all levels, when asked about whether the next justice should be a vote to overturn Roe, will say that all they want is a justice who will objectively follow the law, and they neither know nor care what the nominee’s views on abortion are. “Judges must interpret the law fairly and apply it evenhandedly. Judicial decisions must not flow from judges’ personal philosophies or preferences, but from the honest assessment of the words and actual meaning of the law,” says Senate Majority Leader Mitch McConnell (R-Ky.).
This morning on NPR, the chief counsel of the Judicial Crisis Network, a group devoted to getting more conservative judges on the courts, called the idea that they wanted to overturn Roe “a lot of scaremongering,” and said that “it would be inappropriate for any of them to prejudge that case themselves. And I think it’s unlikely that the court would ever get that square question presented to it anyway.” It’s not like abortion will come before the Supreme Court again, so what are you worried about?
The truth, of course, is that Roe will come before the court very quickly, because Republican-run states have been passing more and more restrictive laws, some with the express purpose of creating a case they hoped would result in Roe being overturned if the makeup of the Supreme Court were to change. For example, in May, Iowa passed a law banning abortion after a fetal heartbeat can be detected, which is generally around six weeks into a pregnancy, before many women even realize they’re pregnant. The whole point was to overturn Roe. “We need to create vehicles that will allow the Supreme Court possibly to reach back and take this case, and to take up an anti-abortion case,” said one of the Republican legislators supporting it.
The president has said he will be picking his new justice from a list provided to him in 2016 by conservative activists. While many of those on the list have never ruled on an abortion case or said anything publicly about it, the ones who have made their hostility clear — indeed, they never would have gotten on the list if the activists had any reason to suspect they wouldn’t vote to overturn Roe. William Pryor, an appeals court judge on the list, has called Roe “the worst abomination of constitutional law in our history.” Another potential nominee, Amy Coney Barrett, has referred to Roe as “an erroneous decision.”
But I’m sure if they were nominated they’d say that they’ll put their personal views aside and look at every case with fresh, unbiased eyes.
Ironically, the only one telling the truth about this question is Trump. During his final debate with Hillary Clinton in 2016, he was asked whether Roe should be overturned, and he responded, “Well, if we put another two or perhaps three justice on, that’s really what’s going to be — that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”
For once, we ought to believe him. And not let his allies get away with denying what everyone knows is true.