Roe ‘settled’ law? Justices’ earlier assurances seem now in doubt
WASHINGTON — During his confirmation to the Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was “settled law,” calling the court cases affirming it “precedent on precedent” that could not be casually overturned.
Amy Coney Barrett told senators during her Senate confirmation hearing that laws could not be undone simply by personal beliefs, including her own. “It’s not the law of Amy,” she quipped.
But, during this week’s landmark Supreme Court hearing over a Mississippi law that could curtail, if not outright end, a woman’s right to abortion, the two newest justices struck a markedly different tone, drawing lines of questioning widely viewed as part of the court’s willingness to dismantle decades-old decisions on access to abortion services.
The disconnect is raising fresh questions about the substance, purpose and theater of the Senate’s confirmation process that some say is badly broken. And it’s creating hard politics for Collins and another Senate Republican who supports abortion rights, Sen. Lisa Murkowski of Alaska, as the nation confronts the potential unraveling of the law.
“I support Roe,” Collins said as she ducked into an elevator shortly after Wednesday’s arguments at the court. The Maine Republican voted to confirm Kavanaugh, but opposed Barrett’s nomination as too close to the 2020 presidential election.
Murkowski declined a hallway interview Thursday at the Capitol and has not provided further public comment. She opposed Kavanaugh and supported Barrett, both nominees among the most narrowly confirmed in the split Senate.
The court’s ruling on the Mississippi case may not be known until June, but the fallout from the week’s arguments are reviving concerns that the judicial branch, like the nation’s other civic institutions, is becoming deeply politicized, and that the Congress — specifically the Senate — must do better in its constitutional role to advise and consent on presidential nominees.
“It’s not like the senators have been naive and have trusted too much,” said Neil Siegel, a law professor at Duke University, who has served as a special counsel to Senate Democrats, including when Joe Biden was a senator. “I think the problem is primarily that we’re deeply polarized, and the Constitution makes nomination and confirmation of federal judges, including justices, a political process.”