After the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization came out last week, many liberals took another look at how the court’s conservative justices described Roe v. Wade during their confirmation hearings. In those hearings, even the most ardent conservative nominee described Roe as an important precedent that had a profound impact on American life. Some even described it as “settled law.”
The perceived disparity between how they described Roe to the Senate and how they overturned Roe from the bench has led some Democrats to propose extraordinary sanctions. One Democratic state lawmaker in Pennsylvania alleged that these justices “literally lied under oath when they said they believed Roe was settled law.” New York Representative Alexandria Ocasio-Cortez claimed that “several [of the justices] lied to secure their appointment” and suggested that they should be impeached for it.
None of the justices’ remarks during those hearings actually appear to be perjurious. It would even be a stretch to describe most of their statements as lies. What their rhetorical feints do reflect, however, is a well-honed strategy to avoid describing their views on Roe until it was too late to stop them from overturning it—one that liberals and abortion rights advocates never quite found a way to refute. More broadly, the backlash only illuminates the utter pointlessness and futility of the Supreme Court confirmation process itself.
Most of this debate revolves around Justice Brett Kavanaugh, and for good reason. His replacement of Anthony Kennedy in 2018 left the Supreme Court with only four unambiguous votes to uphold Roe at that time. As a result, Kavanaugh was questioned about it even more intensely than the average Supreme Court nominee. He stressed time and time again how well he “understood” its importance and impact. “It is not as if [Roe] is just a run-of-the-mill case that was decided and never reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it,” Kavanaugh said.
After Friday’s ruling in Dobbs, The New York Times reported on closed-door conversations between Kavanaugh and Maine Senator Susan Collins, a key vote to confirm him, during the confirmation battle. The Times claimed that Kavanaugh gave “private assurances” to Collins that he would not vote to overturn Roe. “Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law,” the judge reportedly said, according to notes taken by Collins’s staff that the Times obtained. “I understand precedent, and I understand the importance of overturning it.”
He also spoke to the senator specifically about Roe itself. “Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,” he reportedly went on to tell her. “I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.”
If Kavanaugh said this unprompted to a random pedestrian on the street, I could see how that person would get the impression that Kavanaugh wouldn’t vote to overturn Roe. A U.S. senator should know better. Nothing in those statements amounted to an “assurance” that Kavanaugh would vote any specific way on overturning Roe. It reads more like a Wikipedia article than anything else. Everything he said about Roe to Collins he could have said about the French Revolution, or heliocentrism, or disco: It’s very old, it’s been reaffirmed many times, and lots of people care about it.
A more revealing glimpse from the confirmation hearings into how Kavanaugh would rule on Roe was his exchange with Texas Senator Ted Cruz about unenumerated rights, which are rights that Americans possess that aren’t specifically articulated by the Constitution. Kavanaugh told Cruz that “all roads run through the Glucksburg test” when deciding whether a constitutional right exists. That test, drawn from a 1987 case on the right to assisted suicide, concluded that the suggested right did not have a constitutional basis because it was not “deeply rooted” in American “history or tradition.”
Unsurprisingly, Kavanaugh referred again to the Glucksburg test last week when describing why he voted to overturn Roe last week. “To be sure, this court has held that the Constitution protects unenumerated rights that are deeply rooted in this nation’s history and tradition, and implicit in the concept of ordered liberty,” he wrote in his concurring opinion. “But a right to abortion is not deeply rooted in American history and tradition, as the court today thoroughly explains.”
Beyond that, Kavanaugh’s claims that he is a “don’t-rock-the-boat kind of judge” who “believes in stability” is more risible than deceptive. Maybe he really thinks of himself like that. There are occasional glimpses of this, for instance when he delayed a Supreme Court ruling to strike down the Centers for Disease Control and Prevention’s eviction moratorium last year by one month so Congress could act—it didn’t—or even in his concurring opinion in Dobbs last week. In that opinion, he emphasized that Dobbs did not threaten the court’s precedents on contraception, same-sex marriage, or similar issues. Kavanaugh also said that states could not criminalize abortions that took place before Friday or ban women from traveling to other states to obtain them. How generous of him.
Other conservative justices have given similarly noncommittal answers about Roe over the years. When Justice Neil Gorsuch appeared before the committee in 2017, he repeatedly described Roe as a “precedent of the Supreme Court” and said that it was very important. If you asked a friend or family member what they thought of Roe and they replied, “Well, I think it’s a very important precedent,” you could reasonably conclude they supported it. This exceedingly neutral form of English only really exists in the Supreme Court confirmation process. If you asked your best friend, “What did you think of The Godfather?” and they replied, “It was released in 1972,” that tells you something while also telling you less than nothing.
Other answers that Gorsuch gave were less reassuring. At one point, he emphasized that just because something was a precedent doesn’t mean it couldn’t be overturned. “Once a case is settled, that adds to the determinacy of the law,” he explained. “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.” Americans have a broad range of views on abortion and the degree to which they think it should be legalized or criminalized. I would also guess that almost none of them would try to claim that the issue isn’t a “hotly contested” one.
Justice Samuel Alito, who wrote the majority opinion in Dobbs, told senators in 2005 that Roe was an “important precedent of the Supreme Court,” which is like describing Napoleon as an “important leader of France.” Other insights he gave into the case (and how he would rule on it) were equally lacking in insight. “It was decided in 1973, so it has been on the books for a long time,” he told senators at one point, reassuring them that time had and would continue to pass in a linear fashion. Nothing that he told the Senate contradicted his own personal opposition to Roe, which was expressed as early as 1985 and surfaced periodically throughout his legal career.
As for Justice Clarence Thomas, he declined to answer questions from senators about Roe during his own confirmation hearing in 1990. Addressing them, he claimed, would “undermine my ability to be impartial.” Thomas also claimed that he didn’t have “a personal opinion on the outcome in Roe v. Wade,” which would be an impressive feat for an up-and-coming conservative lawyer in the Reagan-Bush years. Other responses he gave during those hearings are almost surreal to read now. At one point, Thomas endorsed the idea of a constitutional right to privacy—something that he has thoroughly rejected as a justice ever since—and distanced himself from speeches where he suggested that some sort of “higher law” than the Constitution “provides the only firm basis for a just, wise, and constitutional decision.”
The theatrical performances surrounding Roe and the confirmation process reached their logical conclusion when Donald Trump nominated Amy Coney Barrett to replace Ruth Bader Ginsburg in 2020. After the Senate rejected Robert Bork in 1987 for being too vocal about his views, including on the nonexistence of a constitutional right to privacy, future Supreme Court nominees kept their opinions closer to the chest during the confirmation process. Presidents, especially Republican ones, also began to seek out nominees with a much lighter paper trail to avoid similar defeats in the future.
Barrett’s nomination broke that pattern. She had a clear record of anti-abortion advocacy as a law professor before joining the federal appellate bench in 2017. “This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime,” Missouri Senator Josh Hawley crowed after she was confirmed to the Supreme Court in 2020. “This is an individual who has been open in her criticism of that illegitimate decision Roe v. Wade.” He referred to open letters by anti-abortion groups that she had signed, including one that called Roe “barbaric” and a “raw exercise of judicial power.”
“I signed that almost 15 years ago in my personal capacity when I was still a private citizen, and now I’m a public official,” she told the Senate Judiciary Committee at one point during her hearings. “And so while I was free to express my private views, at that time, I don’t feel like it is appropriate for me anymore because of the canons of conduct, to express an affirmative view, at this point in time.”
Barrett also promised that “if a question comes up before me about whether Casey or any other case should be overruled, … 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.” In Dobbs, she and her conservative colleagues applied that test and found that, lo and behold, Roe and Casey did not meet it. Barrett was undoubtedly as surprised as everyone else to find that her professional conclusion about the 1973 precedent just happened to match her personal one.
I recount all of this not to defend the justices but to emphasize that nobody should have listened to them in the first place. The conservative legal movement went to great lengths over the past three decades to build social networks and informal screening mechanisms to find judicial nominees who would vote to overturn Roe—and rule in certain ways in other areas of the law—without putting them in thumbscrews or relying on sheer luck. Conservatives learned their lessons from when they came up short on overturning Roe in 1992, when three Republican-appointed justices saved it at the last moment, and they weren’t going to make the same mistake twice. Trump’s pledge to appoint “pro-life judges” in 2016 was just an open articulation of what had already been the unstated policy.
I’ve also written before about why the Senate should stop holding confirmation hearings for Supreme Court justices. They exist today primarily to give the supporting party a chance to lob softballs and the opposing party a chance to castigate or smear the nominee. Prospective justices are so committed to not sharing an inkling of their personal views—in part, historically, to avoid saying anything about Roe or abortion—that Americans get no real insight into how they would decide cases on the court. If the public now starts seeing confirmation hearings as a venue for the justices to mislead lawmakers and the public, then the only reason to hold them is to undermine the courts’ legitimacy. If this month taught us anything, it’s that the justices are more than capable of doing that themselves.
