At their Senate confirmation hearings, each of President Donald Trump’s three Supreme Court nominees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — was pressed by Democrats about their allegiance to the court’s precedents, in part because of the lawmakers’ fear that as justices they would undo the constitutional right to abortion established in Roe v. Wade.
And while Wednesday’s argument over a Mississippi law mostly banning the procedure after 15 weeks of pregnancy left the landmark ruling’s fate unclear, all three have offered important insights in their questions and past writings about their thinking that will be pivotal to the case’s eventual outcome.
Much of Wednesday’s hearing focused on the concept of “stare decisis,” the idea that courts should respect and follow past decisions. The right to abortion before fetal viability was established in 1973 and reaffirmed by the court in 1992.
During his contentious 2018 confirmation process, Kavanaugh won vital support from Sen. Susan Collins (R-Maine), an abortion rights supporter, in part because she said he had privately reassured her that Roe was “settled law.”
On Wednesday, Kavanaugh listed more than a half-dozen major decisions in which the court had reversed its previous positions. The list included groundbreaking decisions about gay rights and school desegregation.
“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” Kavanaugh said in an exchange with Julie Rikelman, the lawyer representing Mississippi’s sole abortion clinic, Jackson Women’s Health.
“If we think that the prior precedents are seriously wrong,” he added, why isn’t the proper approach to “not stick with those precedents in the same way that all those other cases didn’t?”
As a University of Notre Dame law professor, Barrett was outspoken about her antiabortion views and criticized Roe. Notably, she refused during her confirmation hearing to say that Roe was settled precedent, but she indicated she would separate her personal views from her duty to respect court precedent.
Last term, Barrett and Kavanaugh declined to go along with fellow conservatives who wanted to overturn court precedent in a religious rights case. Barrett wrote in a concurring opinion, joined by Kavanaugh, that she thought the earlier case might have been wrongly decided but that there was no reason to immediately overrule or replace the precedent.
On Wednesday, Barrett noted the “benefits of stare decisis.” But she also said in an exchange with Mississippi’s solicitor general, Scott Stewart, that the principle is “not an inexorable command and that there are some circumstances in which overruling it is possible.” She noted that the court in deciding Planned Parenthood v. Casey, the 1992 ruling affirming Roe, had taken into account public reaction and asked, “Is that a factor that you accept, or are you arguing that we should minimize that factor?”
Steve Vladeck, a University of Texas constitutional-law professor who closely follows the court, said there was a difference between what the justices said during the confirmation process and what he heard during Wednesday’s argument.
“Everyone understood there were things that needed to be said at the confirmation hearings, and I think folks can reasonably ask after today whether those views are consistent,” Vladeck said.
“Today’s argument suggests pretty powerfully that a majority of the justices are not especially worried about how a decision reversing Roe might affect” public perception of the court, he said.
Last year, Gorsuch and Kavanaugh were in the majority when the court ruled that state juries must be unanimous to convict a defendant of a serious crime. The decision was at odds with a 1972 opinion that said unanimous verdicts are required for federal trials. In that ruling, one justice in the majority said unanimity was not a requirement for state trials.
Gorsuch wrote at the time, “Even if we accepted the premise that [the 1972 decision] established a precedent, no one on the Court today is prepared to say it was rightly decided, and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.”
“Of course, the precedents of this Court warrant our deep respect as embodying the considered views of those who have come before,” Gorsuch wrote. “But stare decisis has never been treated as ‘an inexorable command.’ ”
In a lengthy concurring opinion, Kavanaugh provided something of a blueprint for the court to follow when determining whether it is appropriate to overrule “erroneous precedent.”
Is the earlier decision “egregiously wrong”? Has the ruling caused significant negative consequences? And to what extent has the public come to rely on the precedent over time?
Even with that road map, though, Kavanaugh acknowledged the challenge such questions pose for the court.
“It is inevitable that judges of good faith applying the stare decisis considerations will sometimes disagree about when to overrule an erroneous constitutional precedent.”
Robert Barnes contributed to this report.