The decision of six judges to end the constitutional right to abortion, overturning historic rulings such as Roe v. Wade and Planned Parenthood v. Casey, has put a renewed focus on what they said on the subject during their confirmation hearings.
Following the standard playbook of most nominees, they all avoided indicating directly how they would govern in any of the cases, they usually limited themselves to expressing their belief in the importance of the precedent, the legal doctrine of “stare decisis.”
Here is a sample:
Pressed on whether to vote to overturn decisions that protect abortion rights, Judge Barrett gave no indication of how she could govern.
“What I will commit is that I will obey all the rules of stare decisis, that if a question arises as to whether Casey or any other case should be dismissed, I will follow the law of stare decisis, applying it as in court the is articulating, applying all the factors, the trust, the viability, being undermined by subsequent legal facts, just all the standard factors, ”he said during his confirmation hearing in October 2020.“ I promise to do so for whatever problem comes up, abortion or whatever. I will follow the law. “
Judge Kavanaugh, repeatedly asked how he would rule on Roe, declined to answer directly if the decision was “right law.”
Roe v. Wade “is an important precedent of the Supreme Court that has been reaffirmed many times. But then planned, and that’s the point I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so keeping in mind the stare decided factors, ”he said in 2018.“ So Casey is now becoming a precedent set. It’s not like it’s just a current case that was decided and never reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent. “
Judge Gorsuch, President Donald J. Trump’s first candidate for the Supreme Court, declined to say how he would rule on abortion.
“Roe v. Wade, ruled in 1973, is a precedent for the U.S. Supreme Court. It has been reaffirmed. Confidence-based considerations are important there, and all other factors that go into precedent analysis must be taken into account, ”he told senators in March 2017.“ It’s a Supreme Court precedent. of the USA. It was reaffirmed to Casey in 1992 and in several other cases. Therefore, a good judge will consider it a precedent of the U.S. Supreme Court worthy of precedent treatment like any other. “
He added: “For a judge to start tilting his hand over whether or not they like this or that precedent would send the wrong signal. It would send the signal to the American people that the judge’s personal opinions have something to do with the work of the judge “.
During his confirmation hearing in January 2006, Mr. Alito said he would address the issue of abortion with an open mind.
“Roe v. Wade is an important precedent for the Supreme Court. It was decided in 1973, so it has been in the books for a long time, ”he said.
But he stopped before calling the law established in the historic ruling.
“If resolved it means it cannot be re-examined, that is one thing,” he told the Judicial Committee senators. “If settled means that it is a precedent that has the right to respect as stare decisis, and all the factors I have mentioned come into play, including reaffirmation and all this, then it is a precedent that is protected, entitled to respect this way under the doctrine of stare decisis “.
He added: “It has been challenged. It has been reaffirmed. But it is an issue that is now involved in litigation at all levels.”
Chief Justice John G. Roberts Jr. he dodged the question of where he stood on abortion during his confirmation hearing in 2005, saying that perhaps someday he should rule on the issue before him.
“I think it’s a shock to the legal system when you overturn a precedent. The precedent plays an important role in promoting stability and impartiality. It’s not enough, and the court has stressed in several times. It is not enough to think that the previous decision was wrongly decided, “he said at the time. “That doesn’t really answer the question. It just raises the question. And you do look at these other factors, like established expectations, like the legitimacy of the court, as to whether a particular precedent is viable or not, whether a precedent has been seen. eroded by later developments.All these factors are involved in the determination to revise a precedent under the principles of stare decisis.
He continued: “I have tried as scrupulously as possible today to avoid making any compromises on cases that could reach the court.”
Appearing before the Senate Judiciary Committee in September 1991, Judge Thomas declined to state his views on abortion and declined to say whether Roe had made the right decision.
“The Supreme Court, of course, in the case of Roe v. Wade has found an interest in a woman’s right to … as a fundamental interest a woman’s right to terminate a pregnancy,” she said. “I don’t think at this point I can maintain my impartiality as a member of the judiciary and comment on this particular case.”
“Senator, your question for me was whether I debated the content of Roe v. Wade, the outcome of Roe v. Wade, I have an opinion today, a personal opinion, on the outcome of Roe v. Wade,” he said. to say. he added, “and my answer is that I don’t have it.”