Judge Jackson: ‘Roe and Casey Are the Settled Law…Concerning the Right to Terminate a Woman's Pregnancy’

By Terence P. Jeffrey | March 24, 2022 | 3:16pm EDT
(Photo by Al Drago/Bloomberg via Getty Images)
(Photo by Al Drago/Bloomberg via Getty Images)

(CNSNews.com) - Judge Ketanji Brown Jackson told the Senate Judiciary Committee on Tuesday that the Supreme Court’s 1973 decision in Roe v. Wade, which declared abortion a “right,” and its 1992 opinion in Planned Parenthood vs. Casey, which upheld Roe, are the “settled law” of the United States regarding the “right” to terminate the life of an unborn child.

Sen. Dianne Feinstein (D.-Calif.) told Judge Jackson at the hearing that Justice Brett Kavanaugh at his own confirmation hearing had said that Roe v. Wade “is settled as a precedent of the Supreme Court.”

Feinstein then said: “So here's the question: Do you agree with Justice Kavanaugh that Roe v. Wade is settled as a precedent?”

Feinstein also noted that she had asked Justice Amy Coney Barrett at her confirmation hearing “whether she agreed with Justice [Antonin] Scalia’s view that Roe was wrongly decided."

“She committed to quote, ‘obey all the rules of stare decisis,’ end quote,’” Feinstein continued.

“If faced with the question of whether to overrule Casey, she said she had quote ‘no agenda to try to overrule Casey,’ end quote,” said Feinstein.

“I do agree with both Justice Kavanaugh and Justice Barrett on this issue,” Judge Jackson said in her response. “Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy.”

“All Supreme Court cases are precedential. They're binding and their principles and their rulings have to be followed,” Judge Jackson also said. “Roe and Casey, as you say, have been reaffirmed by the court and have been relied upon. And reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit a precedent.

“And, in all cases, those precedents of the Supreme Court would have to be reviewed pursuant to those factors because stare decisis is very important,” Judge Jackson said.

Here is a transcript of the exchange on Roe v. Wade between Sen. Dianne Feinstein and Judge Ketanji Brown Jackson:

Chairman Dick Durbin (D.-Ill.): “Senator Feinstein.”

Sen. Dianne Feinstein (D.-Calif.): “Thank you very much, Mr. Chairman. And I just would like to compliment the witness. I think you're doing very well. And as you can see, this is a bit of a tough place. So, Judge, one of the issues that I often discuss with nominees, particularly to the Supreme Court, is the issue of abortion. I've asked the three most recent Supreme Court nominees about this issue, and so I'd like to discuss it a bit with you today. In 2017, I asked Justice Gorsuch about this during his confirmation hearing.

“I asked him to expand on a comment he had made about his belief that precedent is important because it adds stability to the law.

“In response, Justice Gorsuch reiterated his belief that precedent is important because, and I quote, ‘Once a case is settled, that adds to the determinancy of the law,’ end quote. He also stated that Roe has been reaffirmed many times. I also spoke with Judge Kavanaugh about this issue in 2018. I asked him whether he believes that Roe was settled wrong, and if so, whether it was correctly settled? Justice Kavanaugh said that Roe, quote, ‘is settled as a precedent of the Supreme Court,’ end quote.

“He said that Roe, quote, 'has been reaffirmed many times over the past 45 years and most prominently, most importantly, reaffirmed in Planned Parenthood v Casey,' end quote. And he described Casey as, ‘having the value of a precedent on precedent,’ end quote. I most recently spoke about this issue with Justice Barrett in 2020. I asked her whether she agreed with Justice Scalia’s view that Roe was wrongly decided.

“She committed to quote, ‘obey all the rules of stare decisis,’ end quote. If faced with the question of whether to overrule Casey, she said she had quote ‘no agenda to try to overrule Casey,’ end quote. So here's the question: Do you agree with Justice Kavanaugh that Roe v. Wade is settled as a precedent?

“And will you, like Justice Barrett, commit to ‘obey all the rules of stare decisis in cases related to the issue of abortion?’ End quote. “

Judge Ketanji Brown Jackson: “Thank you, Senator. I do agree with both Justice Kavanaugh and Justice Barrett on this issue. Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy. They have established a framework that the court has reaffirmed and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle.

“It provides and establishes predictability, stability, it also serves as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, whether they're workable, in addition to whether or not they're wrong, and other factors as well.

“So, I agree with both of those statements that you read.”

Feinstein: “Well, let me add one to that, and then we'll move on. I'm particularly interested in the case of Roe v, Wade. Roe was decided nearly 50 years ago, and it's been reaffirmed over a dozen times since then. So, my question is this: Does Roe v. Wade have the status of being a case that is a super precedent?

“And what other Supreme Court cases do you believe have that status?”

Jackson: “Well, Senator, all Supreme Court cases are precedential. They're binding and their principles and their rulings have to be followed. Roe and Casey, as you say, have been reaffirmed by the court and have been relied upon. And reliance is one of the factors that the court considers when it seeks to revisit or when it's asked to revisit a precedent.

“And in all cases, those precedents of the Supreme Court would have to be reviewed pursuant to those factors because stare decisis is very important.

Feinstein: “Thank you.”

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