One of the hottest lefty talking points in the wake of the Supreme Court's Dobbs ruling is to allege that various conservative justices "lied" during their confirmation processes. Some of the more excitable types are calling for impeachments or court-packing, which the White House still opposes, and has no chance of happening in the current Senate. Setting aside the more hysterical consequences being demanded in some quarters, the underlying allegation is unfounded. At National Review, Dan McLaughlin patiently explains why:
Recall how the questioning of a Supreme Court nominee proceeds. Senators regularly ask candidates questions about legal issues that are likely to come before the Court in the future. Those questions are often framed as questions about prior Supreme Court cases: Are they settled precedents? Are they soundly reasoned? These are often designed as ways to ask the nominee: Do you pledge to follow this case? Of course, no nominee can safely or prudently give such a pledge. First, if the nominee pledges to rule in a particular way, the nominee will face demands for recusal on the grounds that the nominee has already made up his or her mind and is not impartial. Such recusal demands, many of them based on the slenderest of pretexts, have become a common tactic in delegitimizing the justices and their decisions. By contrast, if the nominee refuses to offer such a pledge, that is taken as evidence of a secret plot to vote the other way, even if the nominee says the same thing about every prior precedent.
In order to square the circle of answering unanswerable questions, Supreme Court nominees of both parties have settled on a formulation sometimes referenced as the “Ginsburg Rule” for how it was framed by Ruth Bader Ginsburg in 1993...When asked about particular past Supreme Court decisions, the nominees have typically confined themselves to describing the reasoning of those decisions and characterizing them as precedents. Is that a lawyerly way of dodging a more substantive answer? Of course it is. These people are experienced lawyers auditioning for the highest positions in the legal profession. It would be disqualifying if their answers weren’t lawyerly.
The conservative nominees -- now justices -- followed this blueprint, including on Roe, a subject on which they were all grilled. McLaughlin notes that "stare decisis has never been ironclad. The Court has overturned its own prior constitutional precedents an estimated 145 times in its history." One question that comes to mind is whether the hordes clamoring for removals, or other radical outcomes, over right-leaning justices' supposed 'lies' about Roe would rage with the same indignation if one of their fellow leftists had done something similar. We can, in fact, definitively answer that question, non-hypothetically -- and we don't have to reach back into ancient constitutional history, nor do we need to cite an example on an issue that lacks a similar cultural potency:
Perhaps the most startling aspect of the Supreme Court opinions in McDonald v. Chicago was the dissenters’ assault on District of Columbia v. Heller. Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. Ominously, Justice Sonia Sotomayor joined the Breyer dissent - contradicting what she told the U.S. Senate and the American people last summer...The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, “In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.” Contrast that with her Senate testimony: “I understand the individual right fully that the Supreme Court recognized in Heller.” And, “I understand how important the right to bear arms is to many, many Americans.”...To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported that Sen. Mark Udall, Colorado Democrat, “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”
On substance, Sotomayor and the other liberal justices were dead wrong on the nature of the Second Amendment. But for the purposes of the current, angry argument about "lies," she told the Senate during her confirmation process that SCOTUS had "fully" recognized that the Second Amendment was an individual right in Heller, which she repeatedly called "settled" law. A year later, she voted to uproot the Second Amendment, agreeing with a ruling that would have reversed Heller and gutted gun rights. She was (barely) in the minority in that 5-4 case, so her effort failed, but she voted exactly the way her testimony suggested she would not, in very short order. Did she lie? By her ideological brethren's own current standards (which shift as necessary, naturally), she sure did. Brazenly. Were there howls on the Left for her ouster? Obviously not. That was a good "lie." So was this one, again via McLaughlin:
When the Court overturned a 1972 decision and recognized a constitutional right to same-sex marriage, did that prove that Justice Elena Kagan had lied? Kagan, after all, told Senator John Cornyn in her sworn questionnaire when nominated to be solicitor general, “There is no federal constitutional right to same-sex marriage.” Or was it the case, as Ed Whelan argued at the time, that “Kagan’s initial evasive written response seemed designed to mislead the reader into thinking that was what she was saying”?
Was the Court, or the 2015 same-sex marriage ruling, "illegitimate" because of Kagan's deceit? 'Progressives' didn't think so, celebrating the win they'd been rooting for. In these examples, Sotomayor and Kagan did precisely what Kavanaugh et al did on Roe, following the same formulation pioneered by RBG (who a Roe critic, I'll remind you, despite being a strong supporter of legalized abortion). She wasn't alone on the legal Left either, though some of those people are hoping people forget about their previous statements and writings:
The majority overruled Roe because, as you yourself have pointed out, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." https://t.co/HvVcmPwoBy
— Charles C. W. Cooke (@charlescwcooke) June 26, 2022
Another point critics are making is that Roe was "settled" law for decades. Sen. John Cornyn, a former state Supreme Court justice in Texas, made a striking, powerful, and obvious counterpoint, which set a great many people into a totally insane, wildly ignorant/dishonest frenzy:
Now do Plessy vs Ferguson/Brown vs Board of Education. https://t.co/hrUYCcIq8Y
— Senator John Cornyn (@JohnCornyn) June 25, 2022
No, what he’s saying is that Brown v Board of Education correctly overturned 50+ years of Plessy’s precedent, thereby pointing out that something being precedent for 50 years doesn’t really have anything to do with it being correctly decided pic.twitter.com/1fDkkiRrEZ
— Logan Dobson (@LoganDobson) June 25, 2022
I'll leave you with the glaring retort to Dobbs scolding from meddlesome foreign leaders, and many Americans, who evidently don't know that (a) reversing Roe is not a blanket nationwide abortion ban, and (b) pre-Dobbs, most of Europe was significantly more "conservative" or restrictionist than America, which was a disgraceful global outlier on abortion (and will remain one in a number of states):
Wow. Today I learned that Europe has more restrictive abortion laws than most of the U.S. did up until this week. https://t.co/h7cvIlIEMN
— Noah Smith ?????? (@Noahpinion) June 26, 2022
Off to a country with a … national 14-wk limit on abortion, which was just changed from 12 wks in February. https://t.co/tlS0VcRYYA
— Mary Katharine Ham (@mkhammer) June 25, 2022
Join the conversation as a VIP Member