The decision by six justices to end the constitutional right to abortion — overturning landmark rulings like Roe v. Wade and Planned Parenthood v. Casey — has cast a renewed spotlight on what they said on the topic during their confirmation hearings.
Following the standard playbook of most nominees, they all avoided directly stating how they would rule in either case, typically sticking to expressing their belief in the importance of precedent, the legal doctrine of “stare decisis.”
Here is a sampling:
Pressed on whether she would vote to overturn decisions protecting abortion rights, Judge Barrett gave no hint of how she might rule.
“What I will commit is that I will obey all the rules of stare decisis, 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,” she said during her confirmation hearing in October 2020. “I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.”
Judge Kavanaugh, questioned repeatedly about how he would rule on Roe, declined to directly answer whether the decision was “correct law.”
Roe v. Wade “is important precedent of the Supreme Court that has been reaffirmed many times. But then Planned — and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors,” he said in 2018. “So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
Judge Gorsuch, President Donald J. Trump’s first nominee to the Supreme Court, refused to say how he would rule on abortion.
“Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered,” he told senators in March 2017. “It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
He added, “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. It would send the signal to the American people that the judge’s personal views have something to do with the judge’s job.”
During his confirmation hearing in January 2006, Mr. Alito said he would approach the issue of abortion with an open mind.
“Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time,” he said.
But he stopped short of calling the landmark ruling settled law.
“If settled means it…
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