When Every Supreme Court Justice Argued They Might Be Pro-Choice

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(AP Photo/Lana Harris)

Last week, a panel of the Court of Appeals for the 5^th Circuit upheld a Texas law designed to make it as difficult as possible to get an abortion in the state, the consequence of which was that 13 clinics were forced to immediately shut their doors (there are only eight remaining, in a state of 26 million people spread out over a quarter-million square miles). The panel's decision, as Ian Millhiser explained, practically begged the Supreme Court to hear this case, something they wouldn't have done if they weren't fairly confident they'd win. And they have reason to be; as everyone knows, the current Court has four liberal justices who are pro-choice, four conservative justices who would almost certainly vote to overturn Roe v. Wade, and Anthony Kennedy, who has declined the opportunity to do so in the past.

But as Millhiser noted: "As a justice, Kennedy's considered 21 different abortion restrictions and upheld 20 of them." That's what this case is about: how far can a state go to restrict a woman's right to choose before it becomes an "undue burden" on her fundamental right to an abortion? That "undue burden" standard was articulated by Sandra Day O'Connor in her 1992 decision in Planned Parenthood v. Casey.

As I wrote last week, if the Supreme Court were to uphold the Texas law, it would be a signal to the states that the undue burden standard is essentially meaningless, and there's almost no restriction on abortion this Court would disallow. The result would be that abortion would become all but illegal in many if not most Republican-controlled states.

The prospect of such a Supreme Court decision made me want to look back at what the justices on the Court said about abortion during their confirmation hearings. (You can find transcripts here.) What you see is a stark contrast. The liberals-Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan-got asked about the subject, and all said that there is indeed a constitutional right to abortion. Some were more emphatic about it than others, but for the most part the questioning on the topic was limited. They're on the side of the current law, they're comfortable saying it, and there's only so much more to ask or answer. There are a few exceptions here and there-Sotomayor was questioned more closely on the topic than the other liberal justices, with a number of Republican senators confronting her with hypothetical scenarios ("Let's say I'm 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum…," said Tom Coburn)-but there were no shocking, or even particularly memorable, exchanges.

The conservatives, on the other hand, are much more interesting. They all came in with variations of the same game plan: to insist on one hand that even if they had an opinion about Roe v. Wade, and they wouldn't admit that they did, it occupied such a remote and inaccessible corner of their minds that they could barely locate it if they tried; and on the other hand that, you never know, maybe they'd actually be pro-choice on the bench. Just as a matter of historical record, since abortion may be heading back to the Court, it's good to remind ourselves of some of the highlights. We'll take them in chronological order:

Antonin Scalia (1986) This most opinionated of judges assured the Senate that his own beliefs could not possibly have been further from his mind. When asked by Ted Kennedy about his beliefs on abortion, he said this:

"I assure you, I have no agenda. I am not going onto the Court with a list of things that I want to do. My only agenda is to be a good judge. I decide the cases brought before me. And I try to decide them according to the law as best as I can figure it out. But it is not a programmatic matter, as far as I am concerned."

Isn't that the thoroughly dispassionate Antonin Scalia we've seen in the decades since? Later, he tried to give Roe's supporters a glimmer of hope:

"There are doubtless laws on the books apart from abortion that I might not agree with, that I might think are misguided, perhaps some that I might even think in the largest sense are immoral in the results that they produce. In no way would I let that influence my determination of how they apply. And if indeed I felt that I could not separate my repugnance for the law from my impartial judgment of what the Constitution permits the society to do, I would recuse myself from the case."

Needless to say, Scalia has not found many cases on which his opinions are so strong that he has recused himself from deciding

.

Anthony Kennedy (1987) Kennedy apparently liked Scalia's dirty book analogy so much he thought he'd use it himself. When asked about a newspaper article relating a conversation in which he supposedly referenced his Catholic faith in a conversation with Sen. Jesse Helms as a signal that he would be an anti-abortion justice, he said this:

"It would be highly improper for a judge to allow his, or her, own personal or religious views to enter into a decision respecting a constitutional matter. There are many books that I will not read, that I do not let, or these days do not recommend, my children read. That does not prohibit me from enforcing the First Amendment because those books are protected by the First Amendment."

The clear implication of this argument is that although he personally doesn't like abortion, that would have no bearing at all on his rulings.

Clarence Thomas (1991) Thomas took a more extreme position on abortion than his colleagues. He began with the familiar argument about impartiality-he'll just do what the Constitution demands, without any prior beliefs coloring his judgment:

"Senator, as I noted yesterday, and I think we all feel strongly in this country about our privacy-I do-I believe the Constitution protects the right to privacy. And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue."

But then Thomas went much farther, claiming not just that his opinions would have no impact, but that in fact there were no opinions there at all. He claimed that he had never in his life had a discussion about Roe v. Wade, nor expressed an opinion about it to anyone. Not only that, it wasn't merely that he thought it would be inappropriate to express an opinion about it when an abortion case might come before him, but he had no opinion whatsoever:

"Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

On the one of the most consequential and fervently debated Supreme Court cases in American history, Thomas insisted that his mind was as blank as that of a newborn babe swaddled in judicial robes. It would be hard to believe there was a single person in America, liberal or conservative, who thought Thomas wasn't lying through his teeth.

John Roberts (2005) Roberts used a tactic which would be picked up soon after by Samuel Alito: whenever he got asked a question about Roe v. Wade, he would answer by ruminating for a while on stare decisis, the principle of deep respect for the Court's prior decisions ("So while I'm happy to talk about stare decisis and the importance of precedent, I don't think I should get into the application of those principles in a particular area"). The fairly obvious intent was to convince people concerned that he would be a vote against Roe that perhaps they were mistaken, so deeply did he honor the prior decisions of the Court. Asked whether Roe was "settled law," the implication of which is that it wouldn't need to be revisited, Roberts replied: "Well, beyond that, it's settled as a precedent of the Court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the Court, yes." Even more famously, Roberts insisted that as a judge, "it's my job to call balls and strikes, and not to pitch or bat." Just the impartial umpire, determining the plain truth.

Samuel Alito (2006) Alito was already on record stating that there was no constitutional right to abortion, which you might think would be a problem if you wanted to convince people that how you would eventually rule was completely uncertain. Not so. Here's one exchange with Sen. Arlen Specter:

Specter: Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?

Alito: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. Today if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind, and I would listen to the arguments that were made.

Specter: So you would approach it with an open mind notwithstanding your 1985 statement?

Alito: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

Later on in the hearings, there was a positively comical exchange between Alito and Sen. Chuck Schumer (it's too long to reproduce here, but if you're interested it's on pages 432-434 of this document), in which Schumer tried desperately to get Alito to say whether he believed that there is no constitutional right to abortion, as he had written in that 1985 memo when he was a lawyer in the Reagan Justice Department, and every time Alito would answer by talking abstractly about the process a judge must go through to reach a decision, to Schumer's rising exasperation. It was as though I kept asking you, "Do you like chocolate?" and you kept replying with, "In order to make chocolate, one must first grind cocoa beans, then add sugar and milk…"

So what do we learn from all this? On one level, what we learn is that with the possible exception of Anthony Kennedy, the conservative justices went into their confirmation hearings with the intention of concealing and misleading when it came to how they would rule on abortion, though the degree of their disingenuousness varied. Perhaps more important is that they all felt this need. You could argue that it's because the possibility being discussed-overturning Roe v. Wade -represents a disruption of the status quo, and they knew that change is frightening. But in a country where opinions on abortion are closely divided, we have a Supreme Court in which four of the nine justices stated forthrightly that Roe is settled law, and the other five tried to convince everyone that maybe they believe that too, but in any case what they believe is utterly irrelevant.

Just something to keep in mind the next time the abortion issue comes before the Court.