Did Supreme Court Justices Lie By Claiming They Wouldn’t Overturn Roe V. Wade? Here’s What They Actually Said.

Topline

Rep. Alexandra Ocasio-Cortez (D-N.Y.) and other prominent Democrats have accused conservative Supreme Court justices of lying under oath for having overturned Roe v. Wade on Friday after giving the impression they wouldn’t do so during their Senate confirmation hearings, but none of the five justices explicitly stated they wouldn’t overturn the longstanding precedent, even as they emphasized it was settled precedent.

Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union addressat the … [+] U.S. Capitol Building on February 5, 2019 in Washington, D.C.

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Key Facts

Justice Samuel Alito, who penned the majority’s opinion overturning Roe, declined to say in his 2006 hearing that Roe was “settled law,” calling it an “important precedent” that is “protected,” but refusing to classify it as something that “can’t be re-examined.”

Justice Clarence Thomas declined to take a position on Roe in his 1991 hearing, saying he has “no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion.”

Justice Neil Gorsuch said in 2017 that “a good judge will consider [Roe]

Justice Brett Kavanaugh said in 2018 he “do[es] not get to pick and choose which Supreme Court precedents I get to follow” and that he “follow[s] them all,” and that Roe is an “important precedent” that has been “reaffirmed many times.”

Justice Amy Coney Barrett said in 2020 she didn’t believe Roe is a “super precedent” that “no one questions anymore,” but “that does not mean that Roe should be overruled.”

Barrett said she would “follow the law of stare decisis” and respect for court precedents if abortion-related cases came before her, but neither she nor Kavanaugh expressly said they would not vote to overturn Roe.

What To Watch For

More Democrats may call for Supreme Court justices to face consequences for allegedly going against their testimony, but legal experts say it’s unlikely the justices have actually lied under oath. “To me, their careful lawyerly phrasing was, itself, a demonstration that they were prepared to overturn Roe,” Northeastern University law professor Dan Urman told the university’s newspaper, and Columbia University law professor Katherine Franke told the Guardian that even if justices said Roe was “settled law,” “What it means is that that’s a decision from the Supreme Court, and I acknowledge that it exists. But it doesn’t carry any kind of significance beyond that.”

Crucial Quote

“I understand how passionate and how deeply people feel about this issue … I understand the importance that people attach to the Roe v. Wade decision, to the Planned Parenthood v. Casey decision,” Kavanaugh said during his hearing. “I do not live in a bubble. I understand. I live in the real world.”

Chief Critic

Ocasio-Cortez said on Meet the Press Sunday she believes the Supreme Court justices should be investigated for whether they committed perjury, and that if they did, that it is an impeachable offense. “If we allow Supreme Court nominees to lie under, under oath and secure lifetime appointments to the highest court of the land and then … issue without basis, rulings that deeply undermine the human and civil rights of the majority of Americans, we must see that through,” Ocasio-Cortez said. “There must be consequences for such a deeply destabilizing action and a hostile takeover of our democratic institutions.”

Surprising Fact

Supreme Court justices can be impeached and removed from office under the same process as presidential impeachments—with the House first considering impeachment and the Senate then holding a trial—but only one, Samuel Chase, has ever actually been impeached. The House impeached the justice in 1804, but he was then acquitted by the Senate.

Key Background

The Supreme Court overturned Roe v. Wade on Friday, upending decades of precedent, with Alito, Thomas, Gorsuch, Kavanaugh and Barrett all signing on to an opinion that declared the 1973 ruling “egregiously wrong.” (Chief Justice John Roberts concurred in part with the decision, saying he agreed Roe’s standard for allowing abortions until the fetus is viable should be struck down, but disagreed with the court overturning Roe entirely.) The decision, which has led to a wave of state-level abortion bans, has prompted new scrutiny on what Kavanaugh and Gorsuch in particular said about Roe when they were being confirmed. Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.Va.), who were key swing votes in confirming Kavanaugh and Gorsuch, released statements after the ruling saying they were surprised and disappointed about how the two justices’ ruled. Manchin said he “trusted” the justices when they said Roe was settled law and was “alarmed” they overturned it, and Collins said the justices’ votes were “inconsistent” with what they had told her during their confirmations. Kavanaugh emphasized his “respect for precedent” to Collins during a meeting with her and said he was “a don’t-rock-the-boat kind of judge,” the New York Times reports based on notes made at the time by staff members, indicating he’d uphold Roe, though those comments were not made under oath.