The vote by the conservative justices in overturning Roe v. Wade forced a fresh look at what they told senators and the nation at their confirmation hearings about the landmark 1973 decision guaranteeing a right to abortion.
“So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other,” Gorsuch said.
He, however, refused to signal how he would rule in future cases on abortion.
“For a judge to start tipping his or her hand about whether they like or dislike this or that precedent would send the wrong signal,” Gorsuch said. “It would send the signal to the American people that the judge’s personal views have something to do with the judge’s job.”
When Sen. Dianne Feinstein (D-Calif.) pressed him on whether Roe had achieved a status as a “super-precedent,” Gorsuch just said that the ruling “has been reaffirmed many times, I can say that.”
Over the years, Supreme Court nominees have gotten more circumspect about what they have said regarding issues they might have to rule on if confirmed, offering as few insights as possible and often frustrating members of the Senate. They often referred to settled law or precedent.
Brett M. Kavanaugh, during his 2018 confirmation hearings, echoed Gorsuch by saying that Roe was an “important precedent of the Supreme Court that has been reaffirmed many times.”
But Kavanaugh indicated during his confirmation that he would be open to overturning “settled law,” including Roe, citing a long list of past Supreme Court cases.
When Feinstein asked him what he meant by “settled law” and whether he believed Roe to be correct law, Kavanaugh said he believed it was “settled as a precedent of the Supreme Court” and should be “entitled the respect under principles of stare decisis,” the notion that precedents should not be overturned without strong reason.
Kavanaugh also said Casey was a “precedent on precedent.”
“It is not as if [Roe] is just a run-of-the-mill case that was decided and never reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it,” Kavanaugh said.
Amy Coney Barrett was decidedly more reserved on the Roe precedent during her confirmation hearings in 2020, weeks before the November elections. During that process, reports surfaced that Barrett had once openly advocated for overturning Roe in a 2006 ad published in the South Bend Tribune by the St. Joseph County Right to Life group, which she and her husband signed. Barrett was, at the time, a law professor at the University of Notre Dame.
The ad decried the “barbaric legacy” of Roe.
But during her confirmation hearing, Barrett said she was committed to obeying “all the rules of stare decisis,” promising that “if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors.”
“I promise to do that for any issue that comes up, abortion or anything else,” she said.
Justice Samuel A. Alito Jr., who wrote the majority opinion that ended Roe on Friday, said during his 2006 confirmation hearing that Roe was an “important precedent of the Supreme Court.”
“It was decided in 1973, so it has been on the books for a long time,” Alito said. He, however, declined to call the ruling “settled law.”
Alito’s views on abortion weren’t secret. In 1985, when applying for a new job in the Justice Department, he wrote in a cover letter 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.”
The letter became a focus of questioning during his confirmation hearings. Sen. Richard J. Durbin (D-Ill.) asked him: “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,” Alito said, that had “been challenged on a number of occasions.”
“The more often a decision is reaffirmed, the more people tend to rely on it,” he said. “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 —”
Durbin interrupted, asking him once again if Roe was the settled law of the land?
“If settled means that it can’t be re-examined, then that’s one thing,” Alito responded. “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.”
Justice Clarence Thomas, during his 1991 hearings, declined to comment on his views on Roe.
“I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case,” Thomas said.
Thomas also refused to say whether he thought Roe was correctly decided, saying he had no “personal opinion.” Once he was seated on the court, however, Thomas made his views clear. By 2020, he wrote a dissenting opinion saying that the court’s “abortion precedents are grievously wrong and should be overruled.”
“The Constitution does not constrain the States’ ability to regulate or even prohibit abortion,” he added.
Chief Justice John G. Roberts Jr. on Friday was part of the 6-to-3 majority that voted to uphold the restrictive Mississippi antiabortion law, but he criticized his conservative colleagues for taking the additional step of overturning Roe.
During his 2005 confirmation hearings, Roberts said Roe was “settled as a precedent of the court.” He told senators then that he believed strongly in the “vindication of the rule of law.”
“Without it, any other rights that you may agree with as a matter of policy are meaningless,” he said.
Roberts argued that it wasn’t enough for justices to believe that a case had been wrongly decided to overturn a ruling. Speaking about stare decisis, Roberts said it was important for justices to consider elements including “settled expectations,” “the legitimacy of the court” and “whether a particular precedent is workable or not” when considering overturning a precedent.
“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 told the Senate.