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Turley: For Cripes' Sake – No, the Conservative Justices Didn't 'Perjure' Themselves on Roe Precedent

Guy Benson
Guy Benson  |  May 10, 2022 10:15 AM

In this country, perjury can be difficult to prove -- and even when a violation seems fairly straightforward, it's not always pursued or punished.  Amid the current hysteria playing out over the Supreme Court's pending decision on abortion jurisprudence -- an authentic leaked draft opinion shows a majority of the justices in favor of overturning the current Roe/Casey precedent, with a sixth justice likely on board for at least upholding Mississippi's 15-week restriction in Dobbs, some on the Left are angrily alleging that these justices lied under oath during the confirmation hearings.  Law professor Jonathan Turley debunks that overheated claim as scurrilous and baseless:

Sen. Majority Leader Chuck Schumer (D., N.Y.) declared that some of the conservative justices “have lied to the U.S. Senate.” Sen. Susan Collins (R., Me.) publicly decried what she claimed were false or misleading answers on Roe by Justices Alito and Kavanaugh. No less a legal figure as Stephen Colbert declared “They knew, that if they were honest, they wouldn’t get the job. So they lied, which I think is perjury. But what do I know? I’m no Supreme Court justice, I’m not a good enough liar.” ... Take Alito. Many of us said when Alito was nominated that he was presumptively opposed to the logic of Roe. After all, in 1985, Alito wrote as a Justice Department lawyer that the Constitution does not contain a right protecting abortions. However, appearances had to be observed.

The late Sen. Arlen Specter (R., Pa.), asked him if he agreed with that statement today and Alito responded in classic confirmation nonspeak. He first repeated the facts (by noting that he was a Justice Department attorney at the time) and then went rote: “Today if 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, I would approach that question with an open mind.” That says absolutely nothing but how every jurist approaches case precedent. You begin with the touchstone of stare decisis and the preference for preserving precedent. You then approach the countervailing question with “an open mind.”

Turley runs through confirmation hearing testimony statements from now-justices Gorsuch, Kavanaugh and Barrett, as well, explaining how their answers do not even come close to perjurious.  One might accuse them of evasiveness, but they didn't lie.  He concludes, "what is most striking about these claims that the justices lied is that most of these critics insisted during their confirmations that they were clearly antagonistic toward Roe. Nothing that they said changed any minds on their judicial philosophy as hostile to the logic of Roe."  Meanwhile, Alito appears to have written the majority opinion in Dobbs -- and given the torrent of threats against the Court from irate leftists, he and his family have reportedly been temporarily relocated to an undisclosed location.  This comes as protests erupted at the homes of other conservative justices over the weekend, after a left-wing group doxxed them and published their addresses online.  The White House conspicuously declined to condemn both the unprecedented leak, and the house-to-house protests, which were actually illegal.  Under mounting pressure to do the bare minimum, outgoing Biden spokesperson Jen Psaki did...the bare minimum yesterday.  Here's my response:


And this observation is basically indisputable:


We covered a new CNN poll showing a substantial GOP lead on the generic 2022 ballot, with the data gathered after the SCOTUS leak and resulting explosion of coverage.  The survey also included data suggesting the fate of Roe is not a top issue for many voters, and unlikely to be a game-changer.  Here's Reuters doing some anecdotal reporting along the same lines around Phoenix, Arizona:

Wilson, 61, is pro-choice, voted for Democratic President Joe Biden, and knew all about the news last week that the U.S. Supreme Court is likely poised to overturn the landmark 1973 Roe v. Wade decision giving women the right to an abortion. Yet Wilson said she is undecided about who she will vote for this November, and abortion rights are not a priority for her. “It’s the economy and jobs,” Wilson said. She said she was disappointed in Biden, because of high inflation and “too many homeless people on the streets.” ... Maria Alvarez, 46, a mother and a realtor, said she is pro-choice, but “I really don’t have a strong opinion on it.” She wants politicians who will take care of pocketbook issues. She had just completed a grocery shop that cost her $400, twice what she used to pay a year ago. Of the 21 women interviewed by Reuters, five said they were pro-life and Republican, while 16 said they were pro-choice. Just two of the 16 said the issue was the top priority for them when voting this November, while half of the 16 were undecided about who to vote for in the Senate race because of concerns about the economy. The other half said they would likely vote Democrat.

The group of women interviewed for the story was overwhelmingly, and therefore very disproportionately, pro-choice -- and the reporter still found abortion to be a low-grade issue.  Half of these pro-choice women are undecided on how to vote in Arizona's key US Senate race this fall, and Roe doesn't jump out as a decisive issue.  Finally, if the goal of the hard Left in the Dobbs conflagration is intimidation and cold-feet reversal, it's not working:

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As of last week, the majority of five justices to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter. A person close to the most conservative members of the court said Roberts told his fellow jurists in a private conference in early December that he planned to uphold the state law and write an opinion that left Roe and Casey in place for now.

Allahpundit analyzes: "If WaPo’s report is true, it means that something substantially similar to Alito’s draft must be shaping up to be the final opinion. In which case the only theory that makes sense is that a liberal leaked the first draft out of frustration, to try to immolate the Court’s institutional credibility."  Agreed, which is why Nina Totenberg's supposedly "leading" counter-theory makes less sense than ever.  I suppose we'll know soon enough.  I also share AP's view on the warring leaks, following the other of all leaks, which remains stunning and appalling.  I'll leave you with a stark reminder that bullying attempts against the Court have emanated from the highest levels of the Democratic Party, which cynically and dishonestly cast itself as America's guardian of norms and institutions during the Trump years: