These Supreme Court justices didn’t make Roe v. Wade promises

The three judges said Roe v. Wade is an important Supreme Court precedent, but no one said they wouldn’t overturn it.

Update June 24, 2022: The Supreme Court upheld the case of Roe v. Wade and ruled in favor of Mississippi’s anti-abortion law in Dobbs v. Jackson Women’s Health Organization. This story has been updated to reflect the Supreme Court’s official decision.

On June 24, the US Supreme Court quashed Roe v. Wade in 1973, which legalized abortion nationwide. There was early speculation that the court would overturn the case, especially since a draft majority opinion obtained by POLITICO in May suggested how the judges would rule.

Roe v. Wade had granted abortion rights under the 14th Amendment for almost five decades. The Supreme Court decision not only overturned Roe v. Wade, but also Planned Parenthood v. Casey, a 1992 ruling that upheld federally protected abortion rights.

Following the leaked statement, actor George Takei was released in May said in a viral tweet that the Supreme Court justices, during their confirmation hearings, on their position on Roe v. Wade lied.

A VERIFY viewer also texted the team to ask if Supreme Court Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh said they would not overturn the landmark court decision. All three judges were nominated by former President Donald Trump and later confirmed by the US Senate.

THE QUESTION

Did Supreme Court Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh say they were Roe v. Wade would not fall during their confirmation hearings?

THE SOURCES

THE ANSWER

That's wrong.

No, Supreme Court Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh did not say they would choose Roe v. Wade would not fall during their confirmation hearings.

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WHAT WE FOUND

When the draft opinion was leaked, the judges were criticized by the legislature. In a statement released May 3, Senator Susan Collins (R-Maine) said if the draft opinion was authentic, it would be “entirely inconsistent” with what Gorsuch and Kavanaugh said during their confirmation hearings and meetings in their office.

Sen. Lisa Murkowski (R-Alaska) also told reporters at the time that the leaked opinion “shook her confidence in the court.”

“It wasn’t the direction I thought the court would take based on statements that were made, that Roe was settled and that it sets a precedent,” Murkowski said.

During their confirmation hearings, Supreme Court Justices Neil Gorsuch and Brett Kavanaugh spoke about the importance of Roe v. Wade as a precedent that has been corroborated time and time again over the years. But they didn’t say they wouldn’t reverse the landmark decision.

During his confirmation hearing in 2017, Gorsuch named Roe v. Wade a “precedent from the US Supreme Court”.

Cornell Law School’s Legal Information Institute (LII) defines a precedent as a court decision “regarded as the authority to decide subsequent cases involving identical or similar facts or similar legal issues.”

“It [Roe v. Wade] was reconfirmed in Casey in 1992 and in several other cases. So a good judge will see it as US Supreme Court precedent, which should be treated like any other precedent,” Gorsuch said.

Gorsuch later said Casey was “established law in the sense that it is a US Supreme Court decision” because of the precedent “which is quite substantial.”

The precedent is “the anchor of law” and “the starting point” for a judge, Gorsuch said during his hearing. “However, there are instances where a court may appropriately override precedent after considering many factors,” he added.

Gorsuch was also asked whether Roe v. Wade has a “super precedent”. Gorsuch refused to say the case had “super precedent” and instead said the decision had been “upheld many times over”.

Super-precedent, according to constitutional scholar Michael J. Gerhard, refers to “those constitutional decisions in which public institutions have invested heavily, relied on them repeatedly, and consistently supported them over a significant period of time.”

Brett Kavanaugh was asked during his confirmation hearing whether he believed Roe v. Wade is an established precedent and whether it can be overturned.

In his reply, Kavanaugh affirmed that Roe v. Wade “was settled as Supreme Court precedent establishing respect under the principles of stare decisis.” He also noted that this has been “confirmed many times over the last 45 years” including in Planned Parenthood v. Casey in 1992.

Stare decisis, which means “to stand by what has been decided” in Latin, according to LII, is the “doctrine that courts will follow precedent in their decisions.”

While Gorsuch and Kavanaugh said Roe v. Wade is a precedent, that doesn’t mean the decision can’t be overturned. Hon. John M. Walker, Jr., Senior Circuit Judge, United States Court of Appeals for the Second Circuit, wrote in an op-ed for Stanford Law School in 2016 that the Supreme Court could set aside its own precedent and gave several examples indicate when the court did this, i.e. in the past.

Kavanaugh also said during his confirmation hearings that he listens to “all the arguments” when deciding a case.

“Precedents are crucial. It is the basis of our system. But you listen to all the arguments,” he said.

Justice Amy Coney Barrett

During Barrett’s confirmation hearing, she was repeatedly challenged by senators after Roe v. Wade asked. She declined to discuss how she might rule on a case that had not yet gone to trial while also setting the precedent of Roe v. Wade acknowledges.

Barrett said she would not “pre-commit” to approach a case in any particular way, later adding that Roe v. Wade “stated unequivocally that the Constitution protects a woman’s right to an abortion.”

“What I pledge is that I will follow all rules of rigid decision, that if a question arises before me as to whether Casey or any other case should be set aside, I will abide by the law of rigid decision and use it as the law The court articulates it, applies all factors, reliance, practicability, is undermined by later legal facts, only all standard factors,” Barrett said during the hearing. “I promise to do this for any issue that comes up, abortion or anything else. I will obey the law.”

Barrett was also asked if Roe v. Wade is a “super precedent”. She defined this as “cases so well regulated that no political actor or people seriously urges their repeal”.

“And I answer a lot of questions about Roe, which I think suggests that Roe doesn’t fall into that category. And scholars from across the spectrum say that doesn’t mean Roe should be overruled, but descriptively it means it’s not a case that everyone has accepted and isn’t calling for to be overturned,” Barrett said.

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