What Justice Kavanaugh Told Senator Collins

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We’re hearing a lot, and are going to hear more, to the effect that Justice Kavanaugh got on the Supreme Court by assuring Senator Collins that he would respect Roe v. Wade as a precedent and that voting to overturn it would mean he had lied to her. The Washington Post already ran a story making this case back in September.

Let’s check the tape. We are relying on Senator Collins’s description of the conversation, but it’s notable that she has never said, “Kavanaugh promised me that he would not vote to overrule Roe,” or anything similar. He didn’t, that is, make the kind of firm commitment to rule a particular way in a possible future case that most legal analysts would consider grossly improper. Collins herself said that Kavanaugh had not made any such commitment.

Here’s what Collins has said, according to the Post:

“As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked,” Collins said. “Its roots in the Constitution give the concept of stare decisis greater weight simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.”

And here’s Politico’s account:

“We talked about whether he considered Roe to be settled law,” Collins told reporters. “He said that he agreed with what [Chief] Justice [John] Roberts said at his nomination hearing in which he said that it was settled law.”

What Roberts said at his hearing was that Roe was a precedent of the Supreme Court entitled to respect as such, “like any other precedent of the Court.” Obviously Roberts did not deny that precedents can ever be overruled, and he specifically avoided declaring that he would vote to re-affirm Roe and Casey, as several senators were pressing him to do.

If Kavanaugh votes to overrule Roe and Casey, presumably it will not be merely because he thinks they were wrongly decided as an original matter; he will grant that their holdings deserve more weight than they would if the Court were coming at them fresh. He will treat them as precedents of the Court to be considered. But if he concludes that there are nonetheless good reasons to overrule them, he won’t be contradicting anything that Collins has said that he said. (Whether she will agree with his decision is of course another matter.)

The Supreme Court has given pro-lifers ample reason to be suspicious of any nominee to it. But the vast majority of pro-lifers didn’t get upset about any of Kavanaugh’s statements in 2018 — because he didn’t say what a lot of pro-abortion commentators now want to pretend he did.