In 1985, Albert Lauber was a government attorney assigned to write part of a legal brief when, he remembered later, a co-worker “just walked into my office one day and said, ‘You know, this is a big assignment and do you want some help?’ ”
Six months later, Alito applied for a more senior job in the Justice Department. In a cover letter to the attorney general, he wrote that as a “life-long registered Republican,” he was “particularly proud” to have worked on cases arguing “that the Constitution does not protect a right to an abortion.”
Nearly four decades later, Alito, now a Supreme Court justice, may have reached his pinnacle in that regard. On Friday, Alito wrote the majority opinion overturning the constitutional right to abortion established in Roe v. Wade and reaffirmed in the court’s 1992 decision in Planned Parenthood v. Casey.
In an echo of Alito’s 1985 words, his draft decision stated that “no such right [to an abortion] is implicitly protected by any constitutional provision.”
The two statements, made 37 years apart, are remarkably consistent — especially considering everything that came in between them.
Alito was nominated to the Supreme Court by President George W. Bush in 2005. Previously, he had served as a federal appeals court judge for 15 years after being appointed by Bush’s father, President George H.W. Bush.
When he was picked for the high court, Alito seemed like a moderate in the mold of the new Chief Justice John G. Roberts Jr., who declined to share his personal views on Roe v. Wade during his confirmation hearings but had made clear he thought it was “settled law.” The Bush administration downplayed Alito’s role in defending the Thornburgh case, saying he hadn’t been involved in writing the legal brief.
Then, as part of the confirmation process, the National Archives released hundreds of pages of documents, including the cover letter stating his personal views and the memo on the Thornburgh case.
“What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?” he wrote in the 1985 memo, before detailing a legal strategy for Reagan administration lawyers to defeat Roe v. Wade altogether.
Clearly, he had played more of a role in Thornburgh than the Bush White House had previously stated.
Unlike Roberts, however, he also had a long record as a judge by then, and his defenders pointed to it. Twice, he had had the opportunity to rule against abortion rights, and twice he voted to uphold Roe.
But there was also Planned Parenthood v. Casey. Before the case made it to the Supreme Court, Alito had been the dissenting judge in the U.S. Court of Appeals for the 3rd Circuit’s decision. He would have upheld all the abortion restrictions the case challenged, including a provision requiring wives to inform their husbands before getting an abortion.
Alito was nominated to the Supreme Court to replace Justice Sandra Day O’Connor, who, though a conservative, had been a key vote in protecting abortion rights. At the confirmation hearings, his letter and the memo were a major focus of questioning by both Democrats and pro-abortion-rights Republicans such as Sen. Arlen Specter (R-Pa.). Sen. Richard J. Durbin (D-Ill.) tried to pin down Alito’s views, asking point-blank, “John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?”
Roe was “an important precedent” that had “been challenged on a number of occasions,” Alito responded. The Supreme Court had “reaffirmed the decision, sometimes on the merits, sometimes, in Casey, based on stare decisis [using previous precedent].”
“The more often a decision is reaffirmed, the more people tend to rely on it,” he said, and “I think that’s entitled to considerable respect, and of course, the more times that happens, the more respect the decision is entitled to, and that’s my view of that. So it is a very important precedent that —”
Okay, Durbin interrupted, but is it the settled law of the land?
“If settled means that it can’t be re-examined, then that’s one thing,” Alito equivocated. “If settled means that it is a precedent that is entitled to respect as stare decisis, and all of the factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.”
“How do you see it?” Durbin asked. Alito answered with the careful and evasive language that has become a standard of these types of hearings, saying that since there were cases about abortion before the court, he couldn’t comment.
Justice Clarence Thomas had been similarly evasive in 1991, testifying that he had no personal opinion on Roe v. Wade. Just a few months later, he joined the dissent in Planned Parenthood v. Casey, claiming Roe had been incorrectly decided — and prompting some abortion-rights activists to argue that Thomas had perjured himself.
But just as they had for Thomas, Alito’s evasive answers worked: He was confirmed on a 58-to-42 vote — at the time one of the narrowest votes ever to confirm a justice.
Since then, the Senate votes to confirm justices Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson have been narrower.