Conservative Justices Long Played Up Ambiguity on Tossing Roe v. Wade

(Bloomberg) -- The U.S. Supreme Court draft opinion overturning Roe v. Wade, first obtained by Politico, follows decades of deliberate ambiguity cultivated by the conservative justices about the legal status of U.S. abortion rights.

Justice Samuel Alito wrote in the draft that the landmark 1973 ruling was “egregiously wrong from the start” and “must be overturned.” According to Politico, justices Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, all Republican nominees, also voted with Alito.

But Alito and the other conservative justices said during their respective Senate confirmation hearings that Roe v. Wade was entitled to respect as a legal precedent that had been the law of the land for decades. It's a doctrine known as “stare decisis,” which is Latin for “to stand by things decided.”

In his 2006 confirmation hearings, Alito called Roe v. Wade a “very important precedent,” noting that that it had been reaffirmed a number of times. “I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious, and when they examine a question and they reach a conclusion,” Alito said to Senator Dick Durbin at the time.

“I think that's entitled to considerable respect, and, of course, the more times that happens, the more respect the decision is entitled to,” Alito said.

Thomas famously testified at his 1991 confirmation hearings that he hadn't given much thought to the question of whether Roe v. Wade had been correctly decided, a position many senators found disingenuous. Since then, Thomas has publicly stated on a number of occasions that Roe should be overturned.

Kavanaugh, Gorsuch and Barrett were all appointed to the high court by former President Donald Trump, who explicitly said he would only name justices who were committed to overturning Roe v. Wade. As a result, they were all aggressively questioned on the subject during their confirmation hearings. Once again, all three paid homage to the doctrine of stare decisis in answering those questions.

“I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh said in 2018, under questioning by Senator Dianne Feinstein. “I do not live in a bubble. I understand. I live in the real world. I understand the importance of the issue.”

During his 2017 confirmation hearings, Gorsuch told Senator Chuck Grassley, “Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered.”

Barrett, in 2020, similarly hailed Roe v. Wade as important precedent while declining to call it a “super precedent” -- a decision so well-settled that it would be unthinkable to overturn it. Under questioning by Senator Amy Klobuchar, Barrett suggested this was a scholarly distinction that only applied to a handful of cases like Brown v. Board of Education, which ended school segregation.

She said Roe v. Wade was probably still too politically contentious to be considered a super precedent. “I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category”, Barrett said. “And scholars across the spectrum say that doesn't mean that Roe should be overruled.”