Take a guess who uttered these words under oath in front of the Senate Judiciary Committee:
“Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973 … The Supreme Court has reaffirmed the decision (in 1992). When a decision is challenged and reaffirmed, that strengthens its value.“
So said Samuel Alito, during his high court confirmation hearing in 2006, voicing respect for traditional judicial precedent – for the notion that rights, once they are conferred to the people, shall not be taken away.
But what Alito said back then, about the strengthened value of Roe, does not track with what he’s writing now. In the leaked draft majority opinion, he decrees that Roe was “egregiously wrong and deeply damaging.” But he’s cool with his blatant switcheroo, because he now insists that respect for judicial precedent does not “compel unending adherence.”
What’s happening now – with Alito drafting a veritable MAGA press release, with apparent support from at least four other Republican appointees (including Trump’s trifecta) – exposes anew the fakery of those Senate confirmation hearings. Nominees say stuff they cynically pretend to believe, and senators cynically pretend to believe them. With the possible exception of Susan Collins, who is either skilled at pretending or the stupidest naif in the chamber.
Amy Coney Barrett – a cinch vote to overturn Roe, as well the 1992 Casey ruling that strengthened the value of Roe – said during her confirmation hearing: “I don’t have any agenda. I don’t have an agenda to try to overrule Casey.”
Bret Kavanaugh – another cinch Alito ally when the final deal is struck – said during his confirmation hearing: “As a judge, it is an important precedent of the Supreme Court. By ‘it,’ I mean Roe v. Wade and Planned Parenthood v. Casey. They have been reaffirmed many times … Casey is precedent on precedent.”
Neil Gorsuch – the first Trump appointee, another surefire Roe-killer – said during his confirmation hearing: “Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It was reaffirmed by Casey in 1992, and several other cases. So a good judge will consider it, as precedent of the United States Supreme Court, worthy of treatment as precedent.”
Even Clarence Thomas – a cinch kill-Roe voter; and husband of Ginni, the Jan. 6 insurrectionist – said long ago during his confirmation hearing: “I believe the Constitution protects the right of privacy, and I have no reason or agenda to prejudge the issue.” (A federal right of privacy, recognized by the high court in 1965, laid the groundwork for Roe.)
Bottom line: The Senate’s accountability process has been rendered virtually worthless. The five Republican appointees who are poised to erase women’s reproductive rights basically bullshitted their way into lifetime jobs by pretending to respect judicial precedent (the principle of stare decisis).
Thirty years ago, we were warned about the institutional damage if such a day ever came. It’s right there in the Casey ruling – which was authored by three Republican appointees:
“Overruling Roe‘s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. (This) decision has a dimension not present in normal cases and is entitled to rare precedential force, to counter the inevitable efforts to overturn it and to thwart its implementation.” Overturning the Roe precedent would be “a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.” It would trigger “loss of confidence in the Judiciary … at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.”
Conservative columnist Bret Stephens has updated that warning today: “(Overturning Roe) will discredit the court as a steward of whatever is left of American steadiness and sanity, and as a bulwark against our fast-depleting respect for institutions and tradition … And not just on abortion. A court that betrays the trust of Americans on an issue that affects so many, so personally, will lose their trust on every other issue as well.”
Bingo.
Dick Polman, a veteran national political columnist based in Philadelphia and a Writer in Residence at the University of Pennsylvania, writes at DickPolman.net. Email him at dickpolman7@gmail.com.
From The Progressive Populist, June 1, 2022
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