“Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi accused ‘several’ Republican-appointed Supreme Court justices of lying to the Senate about their views of Roe v. Wade,” Huffington Post reported after a draft opinion by Samuel Alito leaked to the media.
“Conservative justices ― including Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch ― described Roe v. Wade as settled law in their confirmation hearings and suggested they would respect precedent,” Huffington Post said, while noting, “They never explicitly committed to preserving Roe.” But that sure comes close, and at best would be duplicitous.
And “Kavanaugh personally assured Sen. Susan Collins (R-Maine) in a private meeting that he would hesitate to overturn longstanding decisions like Roe. ‘When I asked him whether it would be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said no,’ Collins said in 2018 before voting to confirm Kavanaugh,” Huffington Post says. Read their article here.
All three of those justices were appointed by Trump.
Alito’s draft sharply criticizes the Roe v. Wade decision, calls it “egregiously wrong,” and overrules it. This language — and Supreme Court justices choose their words carefully — appears designed to give cover to Kavanaugh and the others by characterizing Roe as “egregiously wrong” instead of “wrong;” and in his draft (read it here), he goes out of his way to compare Roe v. Wade to Plessy v. Ferguson, the infamous 1896 Supreme Court decision upholding racial segregation. But falling back on semantics will inevitably be seen as gaming the matter. (Note: Assigning the opinion to Alito gives the Trump justices cover, too; it would look worse if one of them wrote it.)
But wait. Only Alito’s name is on the draft. While it’s thought to reflect the majority’s position, and may be a pre-publication version of the eventual decision, it’s not the others’ position until they sign it. It’s premature to call them liars before their names are on it.
The Democratic tirade does, however, give those justices a taste of what’s coming if they do.
I don’t like to see this, as our system depends on respecting the courts, even if we disagree with their decisions. The alternative is the law of the jungle. But there’s been a lot of disrespect for that system on the Republican side, too; and there was never any chance they wouldn’t reap blowback when they harvested the fruits of their Supreme Court gamesmanship. Kavanaugh, Barrett, and Gorsuch can’t sign this without going down in history as liars. It’s just not time yet to slap that label on them.