Now that Supreme Court nominee Brett Kavanaugh’s confirmation hearings are underway, it’s time for him to join a decades-old American judicial tradition: dodging questions about Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion.
Many of the 12 nominees confirmed to the Supreme Court since 1980 have spent their Senate hearings either trying to avoid giving their opinion or claiming they'd simply never formed one about one of the most controversial Supreme Court rulings of the 20th century.
Antonin Scalia told senators, “I don’t think it would be proper for me to answer that question.”
Samuel Alito stressed, “It’s a very important precedent.”
And Clarence Thomas tried to protest, “I have no reason or agenda to prejudge the issue, or to [be] predisposed to rule one way or another on the issue of abortion.” (Nine months later, he joined an opinion that stated, “Roe was plainly wrong.”)
Many would-be justices say speaking about a hypothetical case would be inappropriate. Or they pivot to proclaiming the importance of Roe as a “settled law” or “precedent of the United States Supreme Court” — which doesn’t mean that a nominee believes Roe was “correctly decided.” Dubbing a ruling “precedent” doesn’t stop a Supreme Court justice from curtailing or overturning its protections.
Ruth Bader Ginsburg — although she’s criticized Roe v. Wade’s legal reasoning — was one of the few nominees to wholly embrace abortion access in her hearing.
“This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself,” the justice now known as “the notorious RBG” told senators. “And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
Carter Sherman contributed to this report.