Is Roe ‘settled’ law?
Justices’ earlier assurances now in doubt
“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.”
— Neil Siegel, law professor at Duke University
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 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.”
Confirmation hearings before the Senate Judiciary Committee are intense affairs, hourslong sessions that typically drag for days as one senator after another grills the president’s nominees over their approach to the law.
Kavanaugh’s hearing in 2018 exploded amid stunning allegations he had sexually assaulted Christine Blasey Ford when they were teenagers at a house party decades ago, claims he vehemently denied.
The abortion debates have been front and center at confirmation hearings, but senators snapped to focus as Republican Donald Trump nominated three conservative justices during his presidential term, potentially tipping the nine-member court away from centrists and liberals.
Suddenly what had been long debates over the legal precedents set by the landmark cases Roe v. Wade and Planned Parenthood v. Casey became very real-life questions for American women as Republicans reached for the long-sought goal of rolling back abortion access.
Kavanaugh repeatedly told the senators under grilling from Democrats and Republicans that the women’s right to an abortion has been affirmed.
“The Supreme Court has recognized the right to an abortion since the 1973 Roe v. Wade case — has affirmed it many times,” he told Sen. Lindsey Graham, R-S.C.
To Sen. Dianne Feinstein, D-Calif., Kavanaugh stressed “the importance of the precedent” under the previous court rulings and a “woman has a constitutional right to obtain an abortion before viability,” referring to the 24 weeks of pregnancy now in question under the Mississippi law, which would lower the threshold to 15 weeks.
He won over Collins, who is not on the panel, after his assurances during a twohour meeting.
Yet during this week’s court hearing Kavanaugh read from a long list of court cases that have upturned past precedents and questioned why the court couldn’t now do the same with abortion.
“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” he said.
Kavanaugh said during the court hearing that the abortion debate is “hard” and perhaps the court should throw it to the states to decide — essentially ending the federal protection.
Senators said the justices could simply be submitting a line of questioning, forcing the lawyers for the state and the federal government to respond, rather than reflecting their own reading of the law.
But Sen. Amy Klobuchar, D-Minn., who had intense exchanges with Kavanaugh and Coney Barrett during the confirmation battles — and voted against both — said what she heard from the court was about what she expected.
“I’m not one bit surprised,” Klobuchar said.
Barrett had told senators that Roe v. Wade did not fall in the category of a “super precedent,” described by legal scholars as cases that are so settled there are no calls to revisit them.
Yet as a conservative Christian, she insisted one’s own views don’t play a role. “It’s not the law of Amy,” she told senators. “It’s the law of the American people.”
This week, Barrett pressed the lawyers to explain why women couldn’t simply give up babies for adoption, now that safe haven laws exist in the states. “Why didn’t you address the safe haven laws and why don’t they matter?”
Asked about the disconnect between the Senate hearings and the court arguments, Sen. Richard Durbin, D-Ill., and now the Judiciary Committee chairman, acknowledged the hearings have their limits, but refrained from judgment until the court issues its ruling.
Perhaps not since Ruth Bader Ginsburg told senators during her own confirmation hearing in 1993 that the decision to bear a child is “central to a woman’s right, her dignity” have nominees been as out-front on their views. The norm now is for nominees to hold their views close.
“We can’t ask for sworn affidavits,” Durbin said. “My belief is the person and their life experience is more predictive of the outcome of future cases than any declaration they make to a committee.”
Republican Sen. John Cornyn of Texas, a former judge, shrugged off the difference between what’s said in committee hearings as a fact of life in politics.
“I’ve seen too many confirmation conversions, where people basically repudiate things they’ve done and said in the past in order to get confirmed, but once we’ve somebody gets confirmed, there’s basically nothing we can do about it,” said Cornyn, who voted to confirm both Kavanaugh and Barrett.
“I don’t think they’re a sham,” he said. “I think there’s useful discussions but obviously there’s no consequences associated with voting in a way that’s different from what you said in the hearing.”