Republican Sen. Mike Lee (Utah) schooled Democrats on Thursday who claim that Supreme Court justices who favor overturning Roe v. Wade lied during their Senate confirmation process.
What is the background?
After a leaked opinion draft written by Supreme Court Justice Samuel Alito showed that five Supreme Court justices — Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — are prepared to overturn Roe v. Wade, some lawmakers have accused the justices of dishonesty.
Every Supreme Court nominee is pressed about abortion precedents and the law doctrine of stare decisis during their Senate confirmation hearings. To avoid unethically revealing how they will vote if the issue comes before them on the court, justices typically provide general answers about respecting judicial precedents.
However, as Lee pointed out, respecting judicial precedents is not and should not be equated with never reconsidering their legality. In fact, overturning landmark precedents because of markedly improved jurisprudence has a long history in the United States.
What did Lee say?
During a Senate Judiciary Committee meeting on Thursday, chairman Dick Durbin (D-Ill.) charged that Alito had been dishonest during his confirmation hearings. Lee swiftly disproved such accusations and gave the committee a pro bono lesson in legal doctrine.
“I remember when [Alito] gave that testimony,” Lee began. “He was correctly characterizing the standard under stare decisis. Stare decisis, of course we have to remember, is not an inexorable command — far from it.”
Stare Decisis takes generally the approach that it’s better to have things settled up than settled right. Now that’s the general principle. But it has limits. One of those limits is— you know, it’s one thing to follow precedent when you’re interpreting a statute. A statute can be changed; the Constitution can’t be changed except under the very rigorous standards outlined by the Constitution and that’s why it’s difficult — it’s intentionally difficult — that’s also why we give diminished deference to precedent under the doctrine of stare decisis when it comes to a provision of the Constitution.”
After explaining how stare decisis actually functions, Lee observed that “it’s actually quite difficult to defend Roe.”
“And the fact that you’re having to rely on stare decisis to begin with says something about the fact that it’s hard to defend Roe as an original matter [and] impossible to defend Roe as a textual matter,” Lee said.
“There is nothing deceptive about saying that Roe being precedent is entitled to respect. That’s the whole point of the doctrine of stare decisis,” he explained. “The fact that the doctrine dictates that precedent be given due respect is not the end of the analysis; it states the reason for the analysis.”
“I think it’s unfortunate to denigrate the character and truthfulness of one of the most honest, decent human beings ever to serve in the federal judiciary and on the Supreme Court of the United States,” Lee exclaimed.
“But more to the point here: I’d hope that you’d stop and consider the fact that nothing in his answers have proved untruthful.”
Sen. Lee Addresses SCOTUS leak in Senate Judiciary Hearing