Within hours of the publication of the leaked first-draft opinion in Dobbs v. Jackson Women’s Health Organization suggesting that the Supreme Court will overrule Roe v. Wade and Planned Parenthood v. Casey, Senate Majority Leader Charles Schumer (D-NY) and House Speaker Nancy Pelosi (D-CA) issued a joint statement accusing “Republican-appointed Justices” of having “lied to the U.S. Senate.” Two days later, Schumer identified the “lie” as “misrepresenting their views” during their confirmation hearings “on respecting precedent when it came to decisions like Roe.”
There is definitely some serious misrepresentation going on about what was said in those hearings about Roe and Casey, but it’s not coming from the Justices.
Some members of Congress went even further than Schumer. Sen. Kirsten Gillibrand (D-NY), for example, claimed that “several Supreme Court justices, including Justice Alito … stated during their confirmation hearings that they would not overturn Roe v. Wade. Every single one of them said … under oath, that they would actually preserve Roe.”
No Supreme Court nominee has ever come close to saying any such thing about any precedent. In fact, for decades, nominees of both parties have studiously avoided giving even what Justice Ruth Bader Ginsburg described in her 1993 hearing as “hints … forecasts … [or] previews.” Transcripts of those hearings, which are available here, here, and here, show exactly what the Justices said and expose how accusations of “lying” are pure fiction.
During the September 2005 hearing on John Roberts’ nomination to be chief justice, then-Sen. Joe Biden (D-DE) compared such gatherings to a “kabuki dance.” Senators try to determine how nominees will vote or write regarding certain issues, while nominees resist pressure to show their judicial hand. Nominees, for example, decline to say whether particular precedents either were correctly decided or should be overruled and often refer to precedents as “settled.” Schumer now claims this word is a promise to oppose overruling a precedent.
Every Supreme Court nominee who has referred to a precedent as “settled” has not only meant the same thing but has even defined it during their hearings. A precedent is settled because it is a precedent—that’s it, nothing more. Calling a precedent “settled” means only that it exists and says absolutely nothing about whether it could, or should, be unsettled. In Justice Samuel Alito’s January 2006 hearing, Sen. Richard Durbin (D-IL) asked if Roe v. Wade “is the settled law of the land.” Alito responded that “settled” did not mean “it can’t be re-examined.” Instead, “settled” means that Roe is “a precedent that is entitled to respect as stare decisis.”
In her July 2009 hearing, Justice Sonia Sotomayor explained that “[a]ll precedents of the Supreme Court I consider settled law subject to the deference [which the] doctrine of stare decisis would counsel.” She gave the identical response about whether several individual precedents were settled: “That is the precedent of the Court, so it is settled law.” Asked about Casey in particular, Sotomayor repeated that it “is the precedent of the Court and settled in terms of the holding of the Court.”
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