Or Sykes is repeating a leftist lie like a good myrmidon.
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 [1], here [2], and here [3], 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.”
Justice Elena Kagan followed the same script during her July 2010 hearing. District
of Columbia v. Heller and McDonald v. Chicago, holding that gun bans violated the
Second Amendment, are, Kagan said, “settled law” and are “entitled to all the
respect of binding precedent.” She put in the same “settled” category precedents
such as Citizens United v. FEC, holding that restrictions on election-related
expression violated the First Amendment; Gonzalez v. Carhart, finding the federal
Partial-Birth Abortion Ban Act constitutional; and United States v. Lopez and United
States v. Morrison, which held that two federal statutes exceeded Congress’
authority to regulate interstate commerce. Kagan explained to Sen. Jeff Sessions
(R-Ala.) that she did not distinguish between “precedent” and “settled law.” She was
crystal clear: “What I mean to say when I use those phrases is, these are decisions
of the court.”
The fact that Schumer enthusiastically supported Sotomayor and Kagan proves that he
knew exactly what they meant. After all, he has said that “overturning Citizens
United is probably more important than any other single thing we could do to
preserve this great and grand democracy.” He would never have supported a Supreme
Court nominee who pledged never to consider overruling Citizens United or the other
precedents Kagan called “settled.”
Republican nominees have carefully duplicated the Sotomayor/Kagan strategy. During
Gorsuch’s March 2017 hearing, for example, he told Sen. Al Franken (D-MN) that
Obergefell v. Hodges, holding that the Constitution protects a right to same-sex
marriage, is “absolutely settled law.” Similarly, Gorsuch told Sen. Richard
Blumenthal (D-CT) that Griswold v. Connecticut and Eisenstadt v. Baird, which
created and extended a constitutional right to use contraception, “are precedents of
the U.S. Supreme Court” that “have been settled.” He told Sen. Chris Coons (D-CT)
that Casey, Lawrence v. Texas, which created a right to same-sex sodomy, and
Obergefell are all “settled law in the sense that [they are] decision[s] of the U.S.
Supreme Court, entitled to the weight of precedent.”
Kavanaugh’s September 2018 hearing followed the same pattern, with Sen. Dianne
Feinstein (D-CA) asking “what do you mean by ‘settled law’?” Kavanaugh could have
been reading from the Sotomayor hearing transcript: “Senator, I said that it is
settled as a precedent of the Supreme Court.” Blumenthal asked if Kavanaugh would
“[c]ommit, sitting here today, that you would never overturn Roe v. Wade.” Kavanaugh
gave the expected response: “Senator, each of the eight Justices currently on the
Supreme Court, when they were in this seat, declined to answer that question.”
Similarly, in her October 2020 hearing, Justice Amy Coney Barrett told Feinstein
that Obergefell “is a precedent of the Supreme Court entitled to respect under the
doctrine of stare decisis.” Barrett said the same thing to Durbin about decisions
upholding the Affordable Care Act and to Sen. Sheldon Whitehouse (D-RI) about United
States v. Virginia, which struck down single-sex education at the Virginia Military
Institute, and Bostock v. Clayton County, construing Title VII of the 1964 Civil
Rights Act as barring employment discrimination on the basis of sexual orientation
or gender identity.
Republicans did not flinch at Republican nominees calling these precedents “settled”
any more than Schumer did when Kagan put Citizens United in that category. Each
nominee chose to use that label precisely because, at least in the Supreme Court
confirmation context, it provides a way to respond while not compromising
impartiality. Asked by Durbin what she meant by “settled,” Barrett also echoed
Sotomayor: “Any precedent entitled to respect under the doctrine of stare decisis
could be characterized as settled.” In other words, every precedent is settled.
Notice that, when referring to precedents as “settled,” nominees also add phrases
such as “respect as stare decisis” (Alito), “entitled to all the weight that
precedent usually gets” (Kagan), “entitled to the weight of precedent” (Gorsuch),
“entitled [to] respect under principles of stare decisis” (Kavanaugh), and “respect
under the doctrine of stare decisis.” Just as “settled” means a precedent exists,
these phrases refer to the process of determining whether a precedent should be
overruled. The factors used in this process are well known and have resulted in the
Supreme Court overruling its own precedents hundreds of times.
While Sotomayor said that “all precedents of the Supreme Court I consider settled,”
she has voted several times to overrule them. So has Kagan, who said that “settled”
means nothing more than “precedent.” If, as Schumer claims today, “settled” means
“immune from overruling,” then Sotomayor and Kagan must also have lied to the U.S.
Senate.
This confirmation hearing strategy is well established and has been followed
consistently by nominees of both parties. The public record is clear. No one,
especially members of Congress, who even casually follows the Supreme Court
confirmation process would fail to grasp something so clear. The obvious conclusion
is that Schumer and others who claim that Justices lied or misrepresented their
views about overruling Roe or Casey are, well, lying or misrepresenting those
Justices’ actual views.
[1]
https://www.senate.gov/reference/Supreme_Court_Nomination_Hearings.htm
[2]
https://www.govinfo.gov/content/pkg/CHRG-115shrg32765/pdf/CHRG-115shrg32765.pdf
[3]
https://ucsd.libguides.com/SCOTUS_Barrett