Law & the Courts

Why Gorsuch Should Remain Reticent on Roe

(Photo: Nick Cannella/Dreamstime)
Long — and wise — tradition holds that nominees practice circumspection about particular cases and precedents.

Based upon his judicial record to date, and — more important – upon his adherence to the originalist methodology most famously practiced by Justice Scalia, there can be little doubt that Neil Gorsuch knows that Roe v. Wade was wrongly decided. He might say so at his confirmation hearing. But do not count on it. It’s rare to hear an unequivocal declaration by a Court nominee that a case that has not yet been overruled is simply wrong. At their Senate hearings, none of the recently appointed justices — Roberts, Alito, Sotomayor, Kagan — identified (so far as I can recall) any such case by name.

Their reticence was part of an established custom, according to which nominees refrain from offering a candid, up-or-down judgment of any standing Supreme Court precedent. By “standing,” I simply mean a case that has not been overruled. Nominees do not hesitate to say that Dred Scott (slavery) or Plessy (segregation) was a mistake.

Antonin Scalia was no stranger to controversy. But at his confirmation hearing in 1986, Scalia declined to say what he thought even of Marbury v. Madison: “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental” as Marbury. (Marbury is the 1803 case upon which judicial review is founded.)

Robert Bork was no shrinking violet, either, and as staunch a foe of a free-floating general “right to privacy” as there was. But at his hearing, he would not repudiate the Griswold case, even though it was the fountainhead of the “privacy” jurisprudence that, within a decade, yielded Roe. Clarence Thomas said that he had given Roe no thought while at Yale Law School. He further testified in 1991 that he had “not made a decision one way or the other with respect to” Roe. Thomas and Scalia voted to overrule Roe in 1992, in Planned Parenthood v. Casey. Bork would have joined them had he been confirmed.

Neither David Souter nor Anthony Kennedy committed himself on Roe at his hearing. Sandra O’Connor was pressed hard at hers to come clean about it. She politely but firmly declined, saying, “It would be inappropriate for me to either endorse or criticize that decision.” These three justices — Souter, Kennedy, and O’Connor — saved Roe, with their Planned Parenthood v. Casey “joint” opinion in 1992.

Yes, there is something a bit unsatisfying in all this, perhaps too much hide-and-seek. Surely there is political management at work, as well as message discipline cultivated for the occasion of the hearing. But even if that were all that could be said in defense of reticence, Neil Gorsuch should nonetheless follow suit: For him to become the first nominee in living memory to reveal his mind about Roe would mark him — now, with some reason — as strikingly imprudent, injudicious, beyond not just the “mainstream” but the norm altogether. It would almost certainly end his confirmation chances.

For Gorsuch to become the first nominee in living memory to reveal his mind about Roe would mark him — now, with some reason — as strikingly imprudent.

Happily, there is much more to be said in support of reticence. One thing is true: Even a sitting judge (such as Gorsuch — or Scalia, Thomas, Souter, et al.) may well not have given much critical thought to many Supreme Court decisions, even one as important as Roe. Overruling any Supreme Court decision is above their pay grade; their lot is to do what they can to apply all the Court’s rulings with at least minimum fidelity. Thoughts about overruling can wait. They have no present cash value.

Besides, no one could critically master all the bodies of law that come before courts. Every judge (and lawyer and professor) must pick and choose just a few areas in which to specialize to have a full-orbed view of what is wrong in a line of Supreme Court cases, when they should be overruled, and how the whole area should be reworked. So, to the most critical question about Roe, namely, whether and under what circumstances the nominee would vote to overrule it, the honest answer might well amount to “I do not really know.”

The reticence on display at confirmation hearings has mostly not been of this diffident sort. It has rather been a polite refusal to answer. Nominees decline to say. They thus might be refusing to share their considered belief (which presumably some possess) that Roe was indeed either a tragedy or a triumph, and that it should either be overruled or reaffirmed at the earliest opportunity.

In fact, all the tight-lipped nominees so far mentioned relied, in one way or another, on canons of judicial propriety to vindicate their reticence. O’Connor put the common point plainly enough: She declined to “endorse or criticize” cases that were sure to come before her on the High Court. Judicial ethics do indeed require any court member to avoid giving the appearance that he lacks impartiality, and too-frank talk about standing precedents could give just such an appearance of bias.

But even if the custom were modified to liberate nominees to say that Roe, for example, was a flat-footed mistake, it should not be modified to invite commitments to overrule. Samuel Alito testified at his Supreme Court hearing:

In every case in which there is prior precedent, the first issue is the issue of stare decisis, and the presumption is that the Court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.

Alito engaged in a spirited give-and-take with Senator Diane Feinstein, specifically about the role of respect for precedent and what that “special justification” looks like. Alito’s reflections were sound and illuminating. They cast some light on whether he would, if appointed to the Supreme Court, overrule Roe. But he offered no commitment.

In truth, the judicial role requires a judge to avoid giving commitments on how he would decide any case. It would be injudicious to make commitments and would invariably lead to calls that the judge recuse himself, because of a “closed mind” on the subject matter of the litigation. No judge should decide a case before looking at the briefs, listening to arguments, discussing the merits with colleagues and perhaps clerks, and then sitting back to consider all the factors. The “special” reasons for overturning a precedent include a host of contingent future facts about parties, facts of the matter, legal issues, intervening changes in both legislative and judge-made law, counsel’s arguments (and more), which would be relevant to making the best constitutional decision.

It would therefore be inappropriate (and not just politically foolish or simply a gaffe) for a nominee to state unequivocally in sworn testimony that a specific case should be overruled. Doing so would amount to a pledge to act in a specific way no matter what, at some future moment and perhaps years later. That pledge, standing alone as a solemn commitment, would in any honorable person operate as a reason — perhaps an overriding reason — to decide a case this way or that notwithstanding what the law and facts of that controversy called for when the case was actually presented.

It is tempting for a pro-lifer such as myself to become a one-issue voter, to support any nominee who pledges to overturn Roe, and not worry about the broader jurisprudence of the aspirant. If Obergefell were added to the pot, I might well gamble on appointing him and hope that he did right by the rest of the docket.

But on sober second thought: No. Those rulings (and a few others) deserve to be discarded. But we should still weigh a nominee according to the larger set of commitments, beliefs, and modus operandi revealed by that person’s writings and record. After all, the Supreme Court decides up to a hundred cases a year, and its members have extraordinary opportunities to shape our whole common life. Such a justice is a good bet to overturn Roe (and Obergefell, for that matter).

The gamut of coming decisions, including those a decade or two hence that now we can see only as through a glass darkly — if it all — has to be reckoned. Twenty years ago, who could have foreseen that “gay” marriage would threaten religious liberty, that smartphones and the “cloud” would confound our doctrines about privacy, that Guantanamo would be the spawning site of new constitutional questions, and that a girl who thinks she is a boy — Gavin Grimm — would be the progressives’ featured Supreme Court plaintiff of the month?

Neil Gorsuch is 49. We cannot guess what issues will face Justice Gorsuch in 2037.

Learning to live with reticence is not like learning to live with the roll of the dice. Far from it. We should insist on hearing in detail a nominee’s views about the role of the courts generally, the basic components of how he reads and would apply the Constitution, and the criteria and methods by which concrete cases are to be resolved. For example: As far as I know Neil Gorsuch has never stated that Roe v. Wade was wrongly decided. Nonetheless I stand by the first sentence of this essay. We do know that Neil Gorsuch wrote this, in his fine book The Future of Assisted Suicide and Euthanasia: “Human life is fundamentally and inherently valuable, so that it is ‘always wrong’ for any private person to intentionally kill another human being.”

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