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I Guess Roe Wasn’t “Settled Law” After All

7 25 17

After the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization came out last week, many liberals took another look at how the court’s conservative justices described Roe v. Wade during their confirmation hearings. In those hearings, even the most ardent conservative nominee described Roe as an important precedent that had a profound impact on American life. Some even described it as “settled law.”

The perceived disparity between how they described Roe to the Senate and how they overturned Roe from the bench has led some Democrats to propose extraordinary sanctions. One Democratic state lawmaker in Pennsylvania alleged that these justices “literally lied under oath when they said they believed Roe was settled law.” New York Representative Alexandria Ocasio-Cortez claimed that “several [of the justices] lied to secure their appointment” and suggested that they should be impeached for it.

None of the justices’ remarks during those hearings actually appear to be perjurious. It would even be a stretch to describe most of their statements as lies. What their rhetorical feints do reflect, however, is a well-honed strategy to avoid describing their views on Roe until it was too late to stop them from overturning it—one that liberals and abortion-rights advocates never quite found a way to refute. More broadly, the backlash only illuminates the utter pointlessness and futility of the Supreme Court confirmation process itself.

Most of this debate revolves around Justice Brett Kavanaugh, and for good reason. His replacement of Anthony Kennedy in 2018 left the Supreme Court with only four unambiguous votes to uphold Roe at that time. As a result, Kavanaugh was questioned about it even more intensely than the average Supreme Court nominee. He stressed time and time again how well he “understood” its importance and impact. “It is not as if [Roe] is just a run-of-the-mill case that was decided and never reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it,” Kavanaugh said.

After Friday’s ruling in Dobbs, The New York Times reported on closed-door conversations between Kavanaugh and Maine Senator Susan Collins, a key vote to confirm him, during the confirmation battle. The Times claimed that Kavanaugh gave “private assurances” to Collins that he would not vote to overturn Roe. “Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law,” the judge reportedly said, according to notes taken by Collins’ staff that the Times obtained. “I understand precedent and I understand the importance of overturning it.”

He also spoke to the senator specifically about Roe itself. “Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,” he........

© New Republic

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