Alito’s draft rejects what he once acknowledged as an established precedent

Associate Justice Samuel Alito’s leaked draft opinion overruling the longstanding pro-choice precedents of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) substantially contradicts his Senate confirmation testimony. Indeed, the latter reads like a dissent to Justice Alito’s draft.  

Did the justice mislead the Senate and the American people to secure his appointment? 

On Jan. 11, 2006, Sen. Arlen Specter (D-Pa.) interrogated the nominee extensively about overruling Roe and Casey, including women’s reliance upon the rulings for participating equally in the economic and social life of the nation by controlling their reproductive lives. Alito responded: “[T]he doctrine of stare decisis is a very important doctrine…It’s important because it limits the power of the judiciary. It’s important because it protects reliance interests. And it’s important because it reflects the view that courts should respect the judgments and wisdom that are embodied in prior judicial decisions.”   

Specter noted that Judge J. Michael Luttig, appointed by President George H. W. Bush to the United States Court of Appeals for the Fourth Circuit, had bowed to Casey as super stare decisis in reaffirming the central pro-choice holding of Roe. Alito resisted a super precedent categorization of Casey that sounded like a laundry detergent size but accepted that Roe and Casey had been reaffirmed 38 times and that each reaffirmation fortified the pro-choice precedents among the constellation of constitutional rights. 

Justice Alito has served 16 years on the Supreme Court since his confirmation statements. The reliance interests engendered by the pro-choice precedents have not diminished. There are no reliance interests on the other side. Pro-choice opponents generally do not plan their careers around denying women reproductive rights.    

The judicial activism in overruling precedents has not diminished. Indeed, judicial activism is fueled by a willingness to overrule a precedent that has been repeatedly reaffirmed over 45 years.  If Roe and Casey are axed, then no precedent is invulnerable to challenge — including the power of judicial review proclaimed in Marbury v. Madison (1803) more than two centuries ago.  Litigants will be encouraged to routinely petition the Supreme Court to disown precedents as if they were restricted railroad tickets good for this day and train only. That practice would substantially enlarge rather than limit the judicial role in the nation’s governance.    

The respect for the judgments and wisdom of the authors of the pro-choice precedents has not diminished since Justice Alito’s confirmation testimony. What has changed to justify abandoning a precedent? 

During the more than four decades that have elapsed since Roe, Congress has refrained from passing a constitutional amendment to overcome the precedent. Neither have two-thirds of the States summoned a constitutional convention to invalidate Roe as authorized by Article V. In contrast, the 26th Amendment enfranchising citizens 18 years of age or older by overruling Oregon v. Mitchell (1970) was ratified in less than four months. The 14th and 19th Amendments also nullified Supreme Court precedents. The amendment process is not a Hail Mary pass. But there is no political consensus favoring an overruling of Roe and Casey.  

Finally, overruling the twin pro-choice precedents would be disastrous for the process of confirming Supreme Court nominees. Going forward, the Senate will insist as a condition of confirmation that the nominee swears under oath to oppose overruling a specific list of politically controversial precedents applauded by a Senate majority. The prized independence and impartiality of the Supreme Court, the crown jewel of the Constitution, will be compromised. 

Chief Justice Charles Evans Hughes decried the Supreme Court’s wayward decisions in Dred Scott v. Sanford, the Legal Tender cases, and the Income Tax cases as severely damaging self-inflicted wounds. A decision overruling Roe and Casey would join that deplorable list. 

Bruce Fein was associate deputy attorney general under President Regan and is the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”