The decision of six judges to terminate the constitutional right to abortion – reversing remarkable decisions such as Rowe v. Wade and Planned Parenthood v. Casey – shed new light on what they said on the subject during their confirmation hearings.
Following the standard game of most nominees, they all avoided directly stating how they would rule in both cases, usually adhering to their belief in the importance of precedent, the legal doctrine of “stare decisis”.
Here is a sample:
Pressed whether she would vote to overturn decisions defending abortion rights, Judge Barrett did not give a hint on how to rule.
“What I will commit to is that I will obey all the rules of star decisis, that if I have a question whether Casey or another case should be overturned, I will follow the law of star decisis, applying it as the court formulates, applying all factors, reliance, performance, is undermined by later legal facts, just all standard factors, “she said during her confirmation hearing in October 2020.” I promise to do this for any problem that arises upwards, abortion or something else. I will obey the law. “
Judge Cavanaugh, repeatedly asked how he would rule on Rowe, declined to say directly whether the decision was “the right law.”
Rowe v. Wade “is an important Supreme Court precedent that has been reaffirmed many times. But then Planned – and that’s the point I want to make, which I think is important. Planned parenting against Casey confirmed Rowe and did so, taking into account the deciding factors, “he said in 2018. So Casey is now becoming a precedent. It doesn’t seem like it’s just a simple case that has been resolved and never reviewed, but Casey specifically reviewed it, applied the factors to solve the look, and decided to confirm it. That makes Casey a precedent upon a precedent. “
Judge Gorsuch, the first presidential candidate Donald J. Trump in the Supreme Court declined to say how he would rule on abortion.
“Rowe v. Wade, ruled in 1973, is a precedent for the United States Supreme Court. It has been confirmed. Considerations of interest in trust are important there and all other factors that go into the analysis of the precedent must be taken into account, “he told senators in March 2017. This is a precedent for the US Supreme Court. It was confirmed in Casey in 1992 and in several other cases. So a good judge will consider it a precedent for the US Supreme Court, worthy of treating a precedent like any other. ”
He added: “In order for a judge to start tilting his hand as to whether or not he likes this or that precedent, he would send the wrong signal. That would send a signal to the American people that the judge’s personal views have something to do with the judge’s work. “
During his confirmation hearing in January 2006, Mr Alito said he would address the issue of open-minded abortion.
“Rowe v. Wade is an important precedent for the Supreme Court. That was decided in 1973, so it’s been in the books for a long time, “he said.
But he stopped calling the remarkable ruling a law.
“If what has been settled means that it cannot be reconsidered, that is one thing,” he told senators from the judicial commission. “If settled means that this is a precedent that has the right to respect as a star decisis and all the factors I mentioned come into play, including reaffirmation and all that, then this is a precedent that is protected, entitled to respect this way according to the doctrine of star decisis.
He added: “This was disputed. It has been confirmed. But this is an issue that is now involved in litigation at all levels. “
Chief Justice John G. Roberts Jr. avoided asking where he was regarding the abortion during his confirmation hearing in 2005, saying he might one day have to rule on the matter before him.
“I think it’s a shock to the legal system when you set a precedent. Precedent plays an important role in promoting stability and impartiality. That is not enough – and the court has emphasized this several times. It is not enough that you can think that the previous decision was made wrong, “he said at the time. “It really doesn’t answer the question. That just begs the question. And you see these other factors as settled expectations, such as the legitimacy of the court, such as whether a precedent is applicable or not, whether a precedent is eroded by subsequent development. All these factors are included in determining whether to review a precedent according to the principles of star decisis.
He continued: “Today I tried as scrupulously as possible to avoid commitments in cases that could go to court.”
Appearing before the Senate Judicial Commission in September 1991, Judge Thomas avoided declaring his views on abortion and declined to say whether Roe had made the right decision.
“The Supreme Court, of course, in Rowe v. Wade found an interest in a woman’s right to – as a fundamental interest – a woman’s right to terminate a pregnancy,” he said. “I do not think that at this point I could maintain my impartiality as a member of the judiciary and comment on this particular case.
“Senator, your question to me was whether I discussed the content of Roe v. Wade, the outcome of Roe v. Wade, do I have an opinion today, a personal opinion on the outcome of Roe v. Wade,” he added: “and my answer to you is that I do not do it.
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