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Thursday, June 30, 2022
No, conservative justices didn’t lie about Roe at their confirmation hearings
The left simply lost the intellectual and political fight over the direction of the Supreme Court but can’t bear to admit it.
Progressives tell themselves instead that they’ve been undone by a series of dirty deeds, including the alleged deceit of conservative justices who lied to the US Senate about their commitment to preserving Roe v. Wade.
What the perjury case against the justices in the Dobbs majority lacks is any evidence of assurances made under oath or otherwise they would vote to uphold a precedent of the court that had, justly, been under withering assault since it was handed down 50 years ago.
This shouldn’t have been hard to figure out. Any judge who considers himself or herself an originalist was going to believe that Roe is bad law because there wasn’t remotely colorable warrant for it under the Constitution. There might have been varying views on what deference was owed to precedent or other tactical questions; there wasn’t any meaningful disagreement on the core matter.
The dance that went on is that Democrats would try to get conservative nominees to say that Roe had been a precedent for a long time. The nominees would agree while not going any further. They’d often cite — correctly — the refusal to comment on contested questions going back to Ruth Bader Ginsburg’s confirmation hearings.
Typical was an exchange between Sen. Amy Klobuchar (D-Minn.) and Amy Coney Barrett during her hearings. Klobuchar pressed Barrett on whether Roe was a “super precedent,” or a ruling that no one thinks is in play anymore. Barrett demurred: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category.”
This wasn’t deception — it was clearly saying, if obliquely, that Roe was vulnerable to challenge. I’d prefer if nominees were less lawyerly, but they are lawyers and the long-standing politicization of the confirmation process puts a premium on indirection.
The Times story doesn’t say that Collins asked Kavanaugh directly if he’d overturn Roe — presumably for good reason. The senator would have known such a question would have been highly improper. In fact, she praised Neil Gorsuch during his 2017 confirmation for saying he would have left the room if someone asked him for a commitment to overturn Roe.
It is doubtful that Kavanaugh told Collins anything in private that he didn’t say in his sworn public testimony as well. If he was playing some sort of double game, Collins should have felt an obligation to call Kavanaugh out on it. She didn’t. In fact, she gladly voted for him.
It is true that in his hearings Kavanaugh leaned heavily on the notion that Roe was precedent and that it had been reaffirmed in Casey, so it was “precedent upon precedent.” Yet other Roe supporters didn’t mistake his meaning. As Sen. Sheldon Whitehouse (D-RI) told Kavanaugh during the hearings, “Your own words make clear you do not really believe Roe v. Wade is settled law since the court, as you said, ‘can always overrule its precedent.’”
In her dramatic floor statement supporting Kavanaugh’s nomination, Collins made it clear that she also understood that his commitment to precedent was not absolute. It would give way, she explained, “in those rare circumstances where a decision is ‘grievously wrong’ or ‘deeply inconsistent with the law.’”
The court held in Dobbs that Roe was, indeed, egregiously wrong. Collins might be disappointed, but she shouldn’t feel ill-used.
Roe never deserved to be written into law in the first place. The conservative justices never said they would preserve it, and it would have been an egregious breach of their duty if they had.