Supreme Court justices on abortion, during confirmation and from the bench

As nominees, prospective jurists are typically circumspect about their leanings on an array of topics, perhaps none more so than abortion. Oftentimes they demur on questions raised by senators during the multi-day confirmation hearings by stating the need to not prejudge issues that may come before the court while vowing to keep an open mind.

Members of both political parties grumble about this practice, as it allows nominees to avoid giving revealing answers to sensitive questions — even when their prior writings and public statements point to strongly held beliefs in certain areas of the law.

The televised confirmation hearings also provide some of the most enduring images of a Supreme Court justice, given that the court has long been resistant to allowing cameras to capture proceedings. The Covid-19 pandemic has forced the court to make some concessions to modernity; this term it has made available a live audio feed of arguments.

Justices’ comments during oral arguments are by no means determinative. Still, their remarks are closely parsed by reporters and legal observers for indications of which way they will ultimately come down on a case.

Here are some excerpts of the nine sitting justices from their Senate confirmation hearings and Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health.

Chief Justice John Roberts

Nominated by President George W. Bush and confirmed in 2005

Then “I know there are people of strongly held views on both sides of the issue. And I know that the responsibility of a judge confronting this issue is to decide the case according to the rule of law consistent with the precedents, not to take sides in a dispute as a matter of policy, but to decide it according to the law.”

So as of ’92, you had a reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.”

Now “On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I’ve never quite understood how you evaluate that.”

“If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice, opportunity to choose, and why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn’t have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?”

Justice Clarence Thomas

Nominated by President George H.W. Bush and confirmed 1991

Then “I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue. … I think to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue.

“Do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade? And my answer to you is that I do not.”

Now “I understand we’re talking about abortion here, but what is confusing is that we — if we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about because it’s written. It’s there. What specifically is the right here that we’re talking about?”

Justice Stephen Breyer

Nominated by President Bill Clinton and confirmed in 1994

Then “The 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.”

Now “It is particularly important to show what we do in overturning a case is grounded in principle and not social pressure, not political pressure.”

“The problem with a super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they’re going to be ready to say ‘No you’re just political, you’re just politicians.’ And that’s what kills us as an American institution.”

Justice Samuel Alito

Nominated by President George W. Bush and confirmed in 2006

Then “I think that the legitimacy of the Court would be undermined in any case if the Court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not be — it should not sway in the wind of public opinion at any time.”

Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions … and I think that when a decision is challenged and it is reaffirmed that strengthens its value.”

Now “Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled?”

Justice Sonia Sotomayor

Nominated by President Barack Obama and confirmed in 2009

Then “In Planned Parenthood v. Casey, the court reaffirmed the court holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances.”

Now “What hasn’t been at issue in the last 30 years is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set for — since Casey and never challenged.”

Justice Elena Kagan

Nominated by President Barack Obama and confirmed in 2010

Then “I do think that the continuing holding of Roe … is that women’s lives and women’s health have to be protected in abortion regulation.”

“The continuing holdings of the Court are that the woman’s life and that the woman’s health must be protected in any abortion regulation.”

Now “Usually there has to be a justification, a strong justification in a case like this beyond the fact that you think the case is wrong. And I guess what strikes me when I look at this case is that not much has changed since Roe and Casey. That people think it’s right or wrong based on the things that they have always thought it was right and wrong for.”

“In the end we are in the same exact place as we were then, except that we’re not because there’s been 50 years of water under the bridge, 50 years of decisions saying that this is part of our law.”

Justice Neil Gorsuch

Nominated by President Donald Trump and confirmed in 2017

Then “It seems to me very important that we abide [by] our standards of review and we do not pick and choose the areas of law to start abandoning our standards of review. … And I do not care if the case is about abortion or widgets or anything else.”

Now “If, hypothetically, the Court were to extend the undue burden standard to regulations prior to viability, would that be workable or would that not be workable in your view?”

“If this Court will reject the viability line, do you see any other intelligible principle that the Court could choose?”

Justice Brett Kavanaugh

nominated by President Donald Trump and confirmed in 2018

Then “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.”

Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent. It is not as if it is just a run of the mill case that was decided and never been reconsidered.”

Now “History helps think about stare decisis, as I’ve looked at it, and the history of how the court’s applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think than is sometimes assumed. If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent.”

“When you have those two interests at stake and both are important, as you acknowledge, why should this Court be the arbiter, rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”

Justice Amy Coney Barrett

nominated by President Donald Trump and confirmed in 2020

Then “What I will commit is that I will obey all the rules of stare decisis. That if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors. I promise to do that for any issue that comes up, abortion or anything else. I’ll follow the law.

“I don’t have an agenda to overturn Casey. I have an agenda to stick to the rule of law and decide cases as they come.”

Now “I think a lot of the colloquy you’ve had with all of us has been about the benefits of stare decisis, which I don’t think anyone disputes. And of course no one can dispute, because it’s part of our stare decisis doctrine, that it’s not an inexorable command and that there are some circumstances in which overruling is possible.”

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