Analysis: What justices said to get confirmed vs. what’s in the draft opinion overturning Roe
A draft opinion published by Politico on Monday and written by Justice Samuel Alito appears to have the support of four other Republican-appointed justices. Things could still change, but the draft eviscerates Roe v. Wade and would overturn decades of law founded on privacy rights.
This should not be shocking if you’ve paid attention to activists and a conservative legal movement that has made this moment their mission for nearly 50 years.
If Roe is overturned, it might come as a complete shock if all you’ve watched is Supreme Court confirmation hearings for the past generation, when obfuscation by nominees on the issue of abortion was elevated to an art form. Justices would never pledge to uphold the law during confirmation, but they paid it great deference as a precedent.
Senator feels misled
Senators who support abortion rights voted to confirm some of these justices assuming they would respect the precedent.
Draft opinion eviscerates Roe v. Wade
In the draft opinion, Alito calls the Roe decision “egregiously wrong” and “exceptionally weak” and argues Roe must be overturned. He said the decision was on a “collision course” with the Constitution.
“This court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on,” he wrote.
These are the words of someone with strong opinions on the issue.
Alito promised to respect precedent
At his confirmation hearing in 2006, Alito promised to keep an open mind on abortion cases and to respect stare decisis, the legal principle by which precedent takes on increasing importance.
In the hearing, Alito tried to separate himself from a memo he wrote in 1985 as a lawyer in the Reagan administration, in which he said the Constitution did not protect a right to an abortion. He may now hand down that decision as a Supreme Court justice.
Clarence Thomas hadn’t given it much thought
“I have not made a decision one way or the other with respect to that important decision,” Thomas told Sen. Patrick Leahy.
Gorsuch said Roe was the ‘law of the land’
While Donald Trump promised as President to appoint justices who would overturn Roe v. Wade, his three nominees said very different things at their confirmation hearings.
Gorsuch explained Roe in the hearing, saying the decision held that “a fetus is not a person for purposes of the 14th Amendment.”
Sen. Dick Durbin asked Gorsuch if he accepted that.
Kavanaugh said he understood Roe’s importance
Like Alito, Kavanaugh had also written a memo as a government lawyer in which he expressed doubt about the precedent of Roe.
But at his confirmation hearing, he said he understood it.
Amy Coney Barrett promised to put her personal feelings aside
At her confirmation hearing to take over for Justice Ruth Bader Ginsburg, Justice Amy Coney Barrett said she would set aside her personal opposition to abortion in order to follow the law as a judge.
“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases, nor should they; it would be in conflict with my judicial oath,” she said.
John Roberts believes in ‘vindication of the rule of law’
Chief Justice John Roberts may not vote with other Republican-appointed justices to fully overturn Roe v. Wade, but he has appeared open to affirming a Mississippi law that would restrict abortion in that state to 15 weeks of gestation.
“Without it, any other rights that you may agree with as a matter of policy are meaningless,” Roberts said.
