The Corner

Law & the Courts

Nominees and Roe: Some Precedents

John Roberts testifies at his confirmation hearing to be Chief Justice of the Supreme Court, September 14, 2005. (Kevin Lamarque/Reuters)

I don’t agree with much of this Paul Waldman op-ed. For example, his claim that Judge Amy Barrett “has referred to Roe as ‘an erroneous decision’” is simply incorrect. I think it was an erroneous decision, her judicial philosophy suggests that she does too, but her words are being distorted.

But one part of the op-ed raised a question in my mind. Waldman criticizes past Republican nominees to the Supreme Court for being evasive about their views on Roe. (I largely agree with the criticism.) He quotes John Roberts, who said Roe is “settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.”

After a few such quotes, Waldman adds, “In contrast, when the liberal justices were asked the same question in their confirmation hearings, they were perfectly forthright, saying that yes, under the Constitution there is a right to abortion and they’d vote to uphold Roe.”

I am not sure he is right about that. I haven’t done an exhaustive look, but it sure looks like this sort of verbiage is pretty common even for Democratic nominees to the Supreme Court. Here is Sonia Sotomayor in 2009: “The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court. . . .

“As I said, I — Casey reaffirmed the holding in Roe. That is the Supreme Court’s settled interpretation of what the core holding is and its reaffirmance of it.”

Elena Kagan, 2010: “I do think that the continuing holding of Roe and Doe v. Bolton is that women’s lives and women’s health have to be protected in abortion regulation.”

Stephen Breyer, 1994: “[T]he case of Roe v. Wade has been the law for 21 years or more, and it was recently affirmed by the Supreme Court of the United States in the case of Casey. That is the law. The questions that you are putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I do not think I should go into those for the reason that those are likely to be the subject of litigation in front of the Court.”

I may have missed the exchanges where these Democratic nominees forthrightly said they would vote to re-affirm Roe. And everyone pretty much knew that they would. But a lot of what those nominees said about abortion was sufficiently anodyne that anyone Trump nominates could say it with little alteration.

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

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