The Corner

Law & the Courts

Josh Hawley’s Litmus Test

The Republican senator from Missouri says that he will vote for only those Supreme Court nominees who go on record saying that Roe v. Wade was wrongly decided. Three thoughts:

1) It is in principle appropriate to ask nominees such questions, expect answers, and evaluate their nominations on the basis of them (as I argued way back when in NR, to the dismay of then-senator Jeff Sessions). And it’s worth challenging the distorted view of relations between the political branches and the judiciary that insists otherwise.

2) It may not always be possible to get a nominee who explicitly opposed Roe on the Supreme Court. I doubt it would have been possible to confirm Justice Kavanaugh in 2018, for example, if he had said Roe was mistaken. It might not have been possible to confirm an on-the-record anti-Roe Justice Thomas in 1991, either.

3) A justice who had been on record against Roe would not be a lock to vote to overturn it, because of the force of precedent. Chief Justice John Roberts might well believe that Roe was wrongly decided as an original matter, just as he believes that Whole Woman’s Health v. Hellerstedt was wrongly decided. But he voted to strike down abortion restrictions this year anyway, on the stated ground that precedent had to stand.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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