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How Collins and Murkowski got the Trump justices’ Roe positions wrong

In 2017 and 2018, Sen. Susan Collins (R-Maine) defended Justices Neil M. Gorsuch and Brett M. Kavanaugh, in part, by pointing to their respect for precedent. (Video: JM Rieger/The Washington Post, Photo: Jabin Botsford/The Washington Post)

Sen. Susan Collins (R-Maine) voted for two of Donald Trump’s three nominees to the Supreme Court. And in doing so, the Republican repeatedly offered assurances that she believed the picks would not overturn Roe. v. Wade.

I actually don’t” think Neil M. Gorsuch would vote to overturn it, she said in 2018.

When Brett M. Kavanaugh’s confirmation hearings came around, she cast a decisive vote for him while saying that she had “full confidence” he would not overturn Roe. She stood by that even after a Kavanaugh dissent in a Supreme Court abortion case that called that into question.

Collins later voted against Trump’s third nominee, Amy Coney Barrett. But her fellow abortion-rights-supporting Republican, Sen. Lisa Murkowski (Alaska), echoed the assurances: “I don’t see her overturning the decision in Roe v. Wade.” (Murkowski had said the same of Kavanaugh, although she voted against him on temperament issues.)

In each case, the senators cited the justices’ previous comments on, and commitment to, precedent. And in each case, those assurances have now proved rather fanciful.

A new and extraordinary leaked draft opinion from the Supreme Court on Monday night indicated that the court is indeed poised to strike down Roe v. Wade, fulfilling a long-standing goal of social conservatives. According to Politico, which reported the leaked draft, all three of Trump’s nominees joined Justices Clarence Thomas and Samuel A. Alito Jr., the opinion’s author, to take the seismic step that would overturn nearly a half-century of precedent and allow legislators to decide abortion access themselves.

Exactly how we got to this point is complicated; nominees often decline to talk about specific issues or cases, leaving senators to glean clues through strategic questions about related topics. On abortion, that has meant peppering the nominees with questions about precedent, their adherence to it, and Roe’s ranking in the pantheon of precedents.

Collins’s and Murkowski’s assurances always threatened to blow back on them. In a statement Tuesday, Collins said that if the leaked decision were final, it would be “completely inconsistent” with what Gorsuch and Kavanaugh told her.

At the same time, some of these nominees — Kavanaugh, especially — offered answers that are somewhat difficult to square with what we see today, even as they kept the door ajar.

In his hearings, Kavanaugh was under great pressure on this issue, especially given how tight the vote was at the time. He needed Collins. When asked about Roe, he repeatedly described it as “precedent on precedent” and “settled as precedent,” citing other decisions that affirmed it, including Planned Parenthood v. Casey. He said a decision by the court to overturn precedent should be rare and that a majority of the court disagreeing with a prior decision should not be enough to overturn it.

At the same time, he declined to say that the case was “correctly settled” or “settled law.”

Gorsuch, in contrast, did agree that abortion was “settled law” but added that caveat of “in the sense that it is a decision of the U.S. Supreme Court.” He also said he accepted it was the “law of the land” that the Supreme Court had ruled that a fetus is not a person under the 14th Amendment.

Some Supreme Court justices might contradict their confirmation hearing testimony if they side with Justice Samuel A. Alito Jr.’s draft opinion on abortion. (Video: Blair Guild/The Washington Post)

He also rebuffed suggestions that Trump, who had promised to nominate only justices who would overturn Roe, had conducted a litmus test with him. He “would have walked out the door” if Trump had broached the subject, Gorsuch declared.

Gorsuch’s comments did carry some real wiggle room, as we’re now seeing, but they were sufficient for both Collins and Murkowski.

Barrett forged yet another somewhat different path on this — a path that seemed to open the door even more to overturning Roe. And as a private citizen, she had signed on to a newspaper ad saying it was “time to put an end to the barbaric legacy of Roe v. Wade.”

The concept of “super precedents” loomed large in her hearing, given that she had written about it previously and seemed to grant that there might indeed be such a thing. She indicated that Roe didn’t qualify under the definition she used, because it wasn’t universally accepted by the public. But she added that experts “across the spectrum say that doesn’t mean that Roe should be overruled.”

None of these confirmation hearings indicated that the nominees thought overturning Roe was completely out of the question, but they are worth comparing to Alito’s reported draft opinion. While it’s unclear exactly how the official decision might turn out, the opinion argues that perhaps this precedent isn’t all it’s cracked up to be — that the justices in Casey were not united in upholding the reasoning behind Roe.

“Two Justices expressed no desire to change Roe in any way,” the draft opinion says. “Four others wanted to overrule the decision in its entirety. And the three remaining Justices, who jointly signed the controlling opinion, took a third position. Their opinion did not endorse Roe’s reasoning, and it even hinted that one or more of its authors might have ‘reservations’ about whether the Constitution protects a right to abortion.”

Whether that’s what the Casey opinion said is a worthy debate. (The opinion says that “the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.”) But the Dobbs draft suggests that precedents and even “precedents on precedent” ultimately didn’t carry nearly as much weight as confirmation hearings might have led some people to believe.

And if you take their past comments at face value, those people include U.S. senators who cast crucial votes for justices who are now poised to dismantle a constitutional right they said they hold dear.