Supreme Court Nominee Kavanaugh Calls Roe v. Wade ‘Settled Law,’ but What Does That Mean?

Supreme Court Nominee Kavanaugh Calls Roe v. Wade ‘Settled Law,’ but What Does That Mean?

Republican Sen. Susan Collins says Supreme Court nominee Brett Kavanaugh called Roe v. Wade “settled law” in a private meeting with her, but pro-choice activists and Democratic leaders greeted the news with skepticism. 

The exchange between Collins and Kavanaugh – who was nominated by President Trump in June – came in a meeting in which they discussed several issues, including the 1973 decision that legalized abortion nationwide.   

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

Chief Justice John Roberts, during his 2005 confirmation hearing, said Roe was “settled as a precedent of the court, entitled to respect under principles of stare decisis.”

Unlike lower courts, the Supreme Court is not bound by precedent – a fact that Democrats noted. They also pointed out that Kavanaugh has not praised Roe, either.  

“Let’s be clear: This is not as simple as Judge Kavanaugh saying that Roe is settled law,” said Minority Leader Chuck Schumer. “Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same thing as saying a case was correctly decided.”

The American Civil Liberties Union, which supports Roe, sent out a Tweet saying, “‘Settled law’ doesn’t mean: 1. Roe can’t be overturned. 2. There aren’t ways to gut abortion rights without overturning Roe.”

Indeed, one year after calling Roe “settled law,” Roberts joined the majority of the Supreme Court in upholding a congressional ban on partial-birth abortion. Six years earlier, the same court had struck down a similar ban.  

Orin Kerr, a law professor at USC Gould Law, added in a Tweet, “In the vernacular of Supreme Court confirmations, though, every Supreme Court precedent is ‘settled law.’ The Supreme Court’s handing down the decision ‘settles’ it by definition.  The question is whether a Justice will later to vote unsettle it.”

Michael Foust is a freelance writer. Visit his blog, MichaelFoust.com.

Photo courtesy: Getty Images/Alex Edelman/Stringer