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- Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all stressed the importance of precedence during Senate confirmation hearings.
- Each said Roe v. Wade is a precedent, but added caveats.
- Barrett said Roe is not a "superprecedent." Gorsuch did not directly answer the superprecedent question. Kavanaugh said he would listen to arguments that precedents were wrongly decided.
Rep. Don Beyer of Northern Virginia is among the many Democrats disappointed by a draft opinion showing the U.S. Supreme Court has tentatively voted to strike down its 49-year-old Roe v. Wade decision establishing a right to an abortion.
"Thinking about the many times Justices Gorsuch, Kavanaugh, and Barrett assured the Senate Judiciary Committee and the American people that Roe was ‘established precedent.’" Beyer tweeted May 2. "I didn’t believe them, but they said it under oath."
A fact-check shows that the three justices nominated by former President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — did say in confirmation hearings that Roe is an important precedent.
Barrett and Gorsuch qualified their remarks, however. Barrett said she did not regard Roe as a "superprecedent," a subjective term for "constitutional decisions in which public institutions have heavily invested, repeatedly relied and supported over a significant period of time." Gorsuch did not give a direct answer when asked whether he considered Roe a superprecedent.
Kavanaugh, during his hearing, was not asked whether he regarded Roe as a superprecedent. He did say, however, that he would be open to arguments that a precedent is wrong.
Let’s take a look at the sworn testimony of the three justices at their confirmation hearing before the Senate Judiciary Committee.
Gorsuch, in 2017, declined to say whether he thought Roe had been correctly decided. "I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court," he said. Gorsuch added that the high court "reaffirmed" the decision in 1992 with its Planned Parenthood v. Casey ruling, which barred states from imposing an "undue burden" on getting an abortion.
"Casey is settled law," Gorsuch said while adding the qualification, "in the sense that it is a decision of the U.S. Supreme Court."
Gorsuch didn’t say yes or no when asked if Roe is a superprecedent. "It has been reaffirmed many times. I can say that," he said.
Kavanaugh, in 2018, said Roe "is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And 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."
Kavanaugh called the Casey decision a "precedent on precedent," a reaffirmed status he compared to that of Miranda rights.
"Even though [former] Chief Justice (William) Rehnquist, by the way, had been a fervent critic of Miranda throughout his career, he decided that it had been settled too long, had been precedent too long, and he reaffirmed it," Kavanaugh said.
But under questioning from Sen. Lindsay Graham, R-S.C., Kavanaugh said precedent shouldn’t always be followed. "I listen to all arguments. You have an open mind. You get the briefs and arguments, and some arguments are better than others. Precedent is critically important. It is the foundation of our system. But you listen to all arguments."
As a private citizen, Barrett signed a newspaper ad in 2006 saying it was "time to put an end to the barbaric legacy of Roe v. Wade." During her 2020 hearing, she declined to say whether she thought Roe had been properly decided. Barrett said she did not want to specifically comment on cases that might come before her.
Barrett said, "precedent is a principle that you’re not going to overrule something without good reason or roll up the law without justification for doing so."
She said she did not consider Roe to be a superprecedent. "Roe does not fall within that category, but that does not mean that Roe should be overruled," Barrett said. "Roe is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis."
Beyer said, "Justices Gorsuch, Kavanaugh, and Barrett assured the Senate Judiciary Committee and the American people that Roe v. Wade was ‘established precedent.’"
Beyer’s statement about the judges — all of whom support a draft Supreme Court ruling that would overturn Roe — is correct, but comes with a caveat. While all three paid homage to precedence and described Roe as such during their confirmation hearings, none said precedents are untouchable or that Roe was cast in stone.
When asked whether they considered Roe to be a "superprecedent," Barrett said no and Gorsuch didn’t answer directly. Kavanaugh, under questioning from an anti-abortion senator, said he would be willing to hear arguments that a precedent is wrong.
We rate Beyer’s statement Mostly True.
Rep. Don Beyer, Twitter, May 2, 2022
Email from Aaron Fritchner, Beyer deputy chief of staff, May 3, 2022
Michael J. Gerhardt, UNC School of Law, "Superprecedent," 2006
Senate Judiciary Committee, Neil Gorsuch confirmation hearings transcript, March 20-23, 2017
Senate Judiciary Committee, Brett Kavanaugh confirmation hearings transcript, September 2018
Amy Coney Barrett Senate Confirmation Hearing, Day 2 transcript, Oct. 13, 2020
The Washington Post, "How Collins and Murkowski got the Trump justices’ Roe positions wrong," May 3, 2022
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