The leaking of a Supreme Court draft decision that would overturn the Roe v. Wade decision legalizing abortion is putting new scrutiny on the nine justices — and their previous statements about precedent.
The draft decision leaked to Politico and published on Monday night does not represent the final decisions of the justices, Chief Justice John Roberts said in a statement on Tuesday.
But that will give little comfort to abortion rights proponents given the draft decision authored by Justice Samuel Alito and the court’s 6-3 conservative majority.
Roberts is a conservative but is seen as a less likely to vote to overturn Roe v. Wade than Alito and Justices Clarence Thomas, Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch.
Those five justices spoke about the importance of precedent when asked about Roe v. Wade during their confirmation hearings. But none said they would vote to affirm the decision.
Here’s what the five conservative justices had to say about Roe v. Wade during their confirmation hearings.
Amy Coney Barrett
Barrett, the most recent conservative justice confirmed to the court and one of three nominated by former President Trump, deflected many questions about Roe v. Wade during her hearings.
Barrett, who succeeded liberal icon Justice Ruth Bader Ginsburg on the court, repeatedly said throughout the hearings she would not answer hypotheticals or give opinion on public policy when asked about issues that pertain to abortion.
She also refused to say that Roe v. Wade was a “super precedent,” defining the term as a case that is universally accepted and that virtually no one advocates for overturning.
Although she said she believed that “indicates that Roe doesn’t fall in that category,” scholars say it “doesn’t mean that Roe should be overruled, but descriptively it does mean that it’s not a case that everyone has accepted.”
Barrett said she would take into account stare decisis, a legal principle that says a judge should look to precedent when deciding on a current issue, when considering any case.
“Senator, what I will commit is that I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that 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,” Barrett said at the hearing, referring to the 1992 Supreme Court decision in Planned Parenthood v. Casey that reaffirmed Roe.
Neil Gorsuch
Gorsuch, another Trump appointee, pointedly stated in his hearing that Roe v. Wade was settled precedent and has been reaffirmed by the court more than once.
“Senator, again, I would tell you that 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,” Gorsuch stated.
“It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other,” he added.
Like Barrett, Gorsuch did not classify Roe v. Wade as a super precedent but said precedent itself deserves “quite a lot” of respect and is “the starting place for a judge.”
He said he respected the “law of the land” that said the 14th Amendment does not apply to a fetus in the womb.
Despite the consideration and respect Gorsuch said precedent deserves, he did not rule out overturning Roe v. Wade.
Brett Kavanaugh
Kavanaugh, like Gorsuch, stressed the importance of precedent when discussing Roe v. Wade and the emphasis the court has put on reaffirming the case.
“Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years,” Kavanaugh, who was appointed by Trump, said.
Kavanaugh emphasized the importance of the decision in Planned Parenthood v. Casey.
“And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The Court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor, and Justice Souter, at great length went through those factors.”
However, when pressed by Sen. Lindsey Graham (R-S.C.), Kavanaugh emphasized the importance of listening to all sides even when precedent is in place.
“Of course. I listen to all arguments. You have an open mind. You get the briefs and arguments. And some arguments are better than others. Precedent is critically important. It is the foundation of our system. But you listen to all arguments,” Kavanaugh said.
Samuel Alito
Alito, who was appointed to the court by former President George W. Bush, conveyed in strong words during his hearing how the reaffirmation of Roe v. Wade has strengthened the case throughout history.
“I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis,” Alito said.
Alito would not say Roe v. Wade was settled law, as back in 2006, like in the present, the abortion issue was under litigation on all levels in the judicial system.
“It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed, but it is an issue that is involved in litigation now at all levels,” Alito said.
When asked if the legitimacy of the Supreme Court was at stake if Roe v. Wade was overturned, Alito said the court needed to not be concerned with public opinion when considering the law.
“Well, I think that the court, and all the courts, the Supreme Court, my court, all the federal courts, should be insulated from public opinion. They should do what the law requires in all instances. That’s why they’re not — that’s why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected, and that’s the reason, so that they don’t do anything under fire. They do what the law requires.”
Clarence Thomas
During Thomas’s confirmation, Roe v. Wade was especially important, as senators felt Thomas endorsed an article that advocated for the overturning the decision.
Thomas said during his hearing he did not have any predetermined opinion on the issue.
“I think it is inappropriate for any judge worth his or her salt to prejudice any issue or to sit on a case which he or she has such strong views that he or she cannot be impartial,” Thomas said in 1991 after he was appointed by President George H.W. Bush.
He emphasized during the hearing he had not made a decision on whether Roe v. Wade was properly decided and that it is inappropriate for a judge to believe something was rightfully or wrongfully decided by the court.