Since President Trump nominated him to the Supreme Court, Brett Kavanaugh has maintained that he considers Roe v. Wade “settled law.” Emails released on Thursday by the New York Times show how little that really means.
The emails, leaked to the Times by an unknown person, were classified as “committee confidential,” meaning they could be viewed by members of the Senate Judiciary Committee as part of the confirmation process but could not be shared with the public.
In his confirmation hearing on Wednesday, Kavanaugh said that Roe, the landmark decision guaranteeing Americans the right to an abortion, was “settled as precedent of the Supreme Court.” Reproductive rights groups have cautioned that such language doesn’t mean much because the Supreme Court can always break with precedent if it chooses. In one of the emails released Thursday, Kavanaugh says essentially the same thing: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent.”
Abortion rights advocates have never been reassured by Kavanaugh’s vague answers on Roe. His email shows they were right to worry — he himself has said that where the Supreme Court is concerned, calling something “settled law” is meaningless.
Ultimately, though, Kavanaugh’s statements on Roe probably only have to satisfy Sens. Susan Collins and Lisa Murkowski, two Republicans who support abortion rights. If Republicans stay united, they have the votes needed to confirm him.
Kavanaugh’s email is a reminder that the Supreme Court doesn’t have to uphold precedent
Kavanaugh’s statement on Roe was part of a 2003 exchange in which he was asked, as a lawyer in the George W. Bush administration, to weigh in on a draft op-ed in support of President Bush’s federal appeals court nominees. The op-ed attempted to counter the notion that one of the nominees, Priscilla Owen, would be hostile to abortion rights.
“Some Democrats claim that confirming Owen would somehow threaten a woman’s right to choose an abortion,” the draft stated. “I find the claim patently absurd. It is widely understood accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
Kavanaugh took issue with this point, noting that the Supreme Court can always overrule “settled law” and adding that in the case of Roe, “three current Justices on the Court would do so.”
As Charlie Savage writes at the Times, Kavanaugh was presumably talking about Justices Antonin Scalia, William Rehnquist, and Clarence Thomas.
During the confirmation hearing on Thursday, Sen. Dianne Feinstein (D-CA) asked Kavanaugh about the emails. The leaked message, she said, “has been viewed as you saying that you don’t think Roe is settled.”
“So please,” she went on, “tell us why you believe Roe is settled law. And if you could, do you believe it is correctly settled?”
Kavanaugh responded that in the email, he was saying that the draft op-ed “might be overstating the position of legal scholars.”
“I’m always concerned with accuracy, and I thought that was not quite an accurate description of all legal scholars,” he added.
On the topic of Roe specifically, Kavanaugh essentially reiterated his vague answer from Wednesday. “Roe v. Wade is an important precedent of the Supreme Court,” he said. “It’s been reaffirmed many times.”
But as he wrote in 2003, the Supreme Court can overrule precedent as long as enough justices agree.
Today, Savage notes, the Court has four justices who are likely anti-Roe: Thomas, Chief Justice John Roberts, and Justices Neil Gorsuch and Samuel Alito. If confirmed, Kavanaugh could become the fifth — enough to overturn the decision and strip Americans of their right to an abortion.