No, the Conservative Justices Didn’t Lie about Roe v. Wade

T he latest in desperation tactics from the defenders of Roe v. Wade is the claim that Supreme Court justices aren’t permitted to overturn Roe because doing so would mean that they lied under oath at their confirmation hearings and thus could be prosecuted for exercising their independent legal judgment. This is every bit as bad and disingenuous an argument as it sounds.

Democratic congressman Ted Lieu claims that “multiple Supreme Court Justices lied during their confirmation process about their view of #RoeVWade and stare decisis.” Democratic Senator Kirsten Gillibrand told CNN that the conservatives signing on to Alito’s draft “misled the Senate, with the intention of getting their confirmation vote, with the intention of overruling Roe.” The argument is often framed as an Internet meme:

But recall how the questioning of a Supreme Court nominee proceeds. Senators regularly ask candidates questions about legal issues that are likely to come before the Court in the future. Those questions are often framed as questions about prior Supreme Court cases: Are they settled precedents? Are they soundly reasoned? These are often designed as ways to ask the nominee: Do you pledge to follow this case?

Of course, no nominee can safely or prudently give such a pledge. First, if the nominee pledges to rule in a particular way, the nominee will face demands for recusal on the grounds that the nominee has already made up his or her mind and is not impartial. Such recusal demands, many of them based on the slenderest of pretexts, have become a common tactic in delegitimizing the justices and their decisions. By contrast, if the nominee refuses to offer such a pledge, that is taken as evidence of a secret plot to vote the other way, even if the nominee says the same thing about every prior precedent.

This is not just a matter of political perception: It also goes to the fundamental question of judicial independence. The Supreme Court is a coequal branch of government, and its core responsibility is what Alexander Hamilton described as “inflexible and uniform adherence to the rights of the Constitution.” What would we think of a justice who concluded that the Constitution required one outcome but ruled the other way out of fear of being impeached or prosecuted on the grounds of having pledged the other outcome to a senator? I would hope that most of us would consider that an intolerable corruption of the judiciary.

In order to square the circle of answering unanswerable questions, Supreme Court nominees of both parties have settled on a formulation sometimes referenced as the “Ginsburg Rule” for how it was framed by Ruth Bader Ginsburg in 1993:

A judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process. . . . Anything I say could be taken as a hint or a forecast on how I would treat a classification that is going to be in question before a court. . . . I cannot say one word . . . that would not violate what I said had to be my rule about no hints, no forecasts, no previews.

When asked about particular past Supreme Court decisions, the nominees have typically confined themselves to describing the reasoning of those decisions and characterizing them as precedents. Is that a lawyerly way of dodging a more substantive answer? Of course it is. These people are experienced lawyers auditioning for the highest positions in the legal profession. It would be disqualifying if their answers weren’t lawyerly.

At her own hearing less than two months ago, Ketanji Brown Jackson discussed various precedents but steadfastly refused to offer any sort of characterization of the strength of particular precedents: “All Supreme Court cases are precedential; they’re binding. . . . I’m not aware of any ranking or grading of precedents; all precedents of the Supreme Court are entitled to respect on an equal basis.” That is precisely true: Every decision of the Court is binding on the lower courts unless and until it is overturned, and every prior decision of the Court is entitled to be treated with respect by the Court and overturned only on the basis of a careful analysis of stare decisis, the doctrine of respecting things previously decided.

Justice Samuel Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization does precisely that, spending 31 pages analyzing the stare decisis factors. It is, in fact, a much more respectful treatment than the Court has often given to precedents when they are overturned in favor of outcomes that push the law leftward. Stare decisis has never been ironclad. The Court has overturned its own prior constitutional precedents an estimated 145 times in its history.

When the Court overturned a 1972 decision and recognized a constitutional right to same-sex marriage, did that prove that Justice Elena Kagan had lied? Kagan, after all, told Senator John Cornyn in her sworn questionnaire when nominated to be solicitor general, “There is no federal constitutional right to same-sex marriage.” Or was it the case, as Ed Whelan argued at the time, that “Kagan’s initial evasive written response seemed designed to mislead the reader into thinking that was what she was saying”?

Would Ketanji Brown Jackson be a liar if, once on the Court, she voted to overturn a precedent, after having described them all in these terms? Of course not. Nobody thinks so. But the things said by the conservative justices about Roe aren’t much different from what Jackson said about the Court’s precedents. FactCheck.org walked through the statements, and you can read them at length for yourself. Consider the three most recent examples. Neil Gorsuch, for example, testified 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. 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.

Gorsuch cautioned, however: “If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view precedent in that fashion, I would be tipping my hand and suggesting to litigants that I have already made up my mind about their cases.” Brett Kavanaugh did much the same:

As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade. . . . [It] is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it. In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe. That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as [Washington v.] Glucksberg and other cases. So that precedent on precedent is quite important as you think about stare decisis in this context.

Every word of that description is an accurate account of the history of Roe. But Kavanaugh also reassured Senator Lindsey Graham that he was open to arguments for revisiting precedents: “Precedent is critically important. It is the foundation of our system. But you listen to all arguments.” Amy Coney Barrett, like Jackson, refused to be baited into describing Roe as a “super-precedent,” a category she had used in her scholarly writing to describe cases that are so broadly accepted that nobody tries to overturn them: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively, it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling.” She, too, told the Senate that precedent and stare decisis are important and require serious analysis — the sort that Alito is now applying:

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. And I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.

Not one of these statements was in any way factually inaccurate at the time; the argument by Roe’s last-ditch defenders is that they concealed an intention to overturn Roe. But even if the justices intended that at the time — and quite possibly some did — it would have been irresponsible to publicly lock themselves in under oath to do so. After all, a judge never knows when a case will come before them and whether they will change their mind based on the arguments then presented. Arguing that they ought to be bound forever to a precedent simply because they described it accurately as such at the time of their hearing is a standard no liberal or progressive would want applied to their own nominees. It is simply a made-up excuse for complaining that the justices are now doing their jobs.