Supreme Court Live Updates: Supreme Court Confirms Leaked Opinion But Says the Draft Is Not a Final Decision

In the leaked draft opinion, Justice Samuel A. Alito Jr. wrote the majority’s decision to overturn Roe v. Wade, and four other Republican-appointed justices — Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted with him in the conference held among the justices, according to Politico.

The news organization reported that Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan were working on dissents. It was not clear how Chief Justice John G. Roberts Jr. planned to vote.

Here is what the justices, and soon-to-be Justice Ketanji Brown Jackson, who will be sworn in when Justice Breyer retires at the end of the term, have said about Roe v. Wade:

Justice Samuel Alito

Justice Alito has consistently opposed legal protections for abortion.

As a government lawyer applying for a promotion in the Reagan administration in 1985, he wrote that he was “particularly proud” to have helped advance the argument that “the Constitution does not protect a right to an abortion.”

At his confirmation hearing in 2006, Justice Alito said repeatedly that Roe was a precedent that warranted respect but declined to call it “settled law.” He also wrote the majority opinion in a case in 2018 that overruled a major labor decision, including a 14-page discussion of the “factors that should be taken into account in deciding whether to overrule a past decision.”

Justice Amy Coney Barrett

Justice Barrett’s record shows her committed opposition to the right to abortion. In 2006, she signed a newspaper ad that supported overturning the “barbaric legacy” of Roe.

During her confirmation hearing in 2020, Justice Barrett said that Roe was not a “super-precedent,” or a decision considered so well established that it could not be overturned. “That doesn’t mean that Roe should be overruled but, descriptively, it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling,” she added.

Justice Stephen Breyer

Justice Breyer has been a longtime supporter of abortion rights. “The case of Roe v. Wade has been the law for 21 years or more,” he said at his confirmation hearing in 1994. “That is the law.”

He also expressed strong disapproval over a Texas abortion law prohibiting most abortions that went into effect in September. In an interview with NPR, Mr. Breyer described the US Supreme Court refusal to block the law as “very, very, very wrong.”

Justice Neil Gorsuch

At his hearing in 2017, Justice Gorsuch attested that Roe was precedent, and that part of the value of precedent is that it “adds to the determination of law.” However, he voted against striking down laws that would restrict abortion in both Texas last year and Louisiana in 2020.

Justice Elena Kagan

Justice Kagan dissented when the Supreme Court allowed the Texas law to go into effect in September, criticizing the court’s practice of deciding important issues in rushed decisions without full briefing or oral argument, which Supreme Court specialists call its “shadow docket.”

Justice Kagan has also taken a hard line on upholding precedent, perhaps more than any other current member of the court. “It is hard to overstate the value, in a country like ours, of stability in the law,” she has said.

Justice Brett Kavanaugh

At his confirmation hearing in 2018, Justice Brett M. Kavanaugh called a woman’s right to an abortion “settled law.” He referred to court cases as “precedent on precedent,” and said that they could not be easily overturned.

In 2003, however, he said he did not believe that the abortion rights precedent should be considered a settled legal issue, writing, “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, and three current Justices on the Court would do so.”

Justice Kavanaugh has also supported abortion restrictions with some moderation. In 2019, for example, when the court temporarily blocked a Louisiana law restricting abortions, he issued a dissent that acknowledged the key legal precedent.

Chief Justice John Roberts

Chief Justice Roberts was in the majority when the court in 2007 upheld a federal law banning an abortion procedure. When the court struck down Texas abortion restrictions in 2016, I dissented.

Although known for crafting narrow and incremental decisions, the chief justice has recently voted in favor of some abortion rights.

Chief Justice Roberts voted to strike down a restrictive Louisiana abortion law in 2020. In a concurring opinion, he identified what he said was the central principle of Roe v. Wade: that women have the right to end their pregnancies before fetal viability.

In September 2021, I dissented when the court refused to block the Texas law banning most abortions after six weeks, voting with the court’s three remaining liberals.

Justice Sonia Sotomayor

Justice Sotomayor has been the Supreme Court’s leading voice in support of abortion rights since the death of Justice Ruth Bader Ginsburg. She also filed a dissent when the court refused to block the Texas law last year.

“The Court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

Justice Clarence Thomas

Justice Thomas has been a committed foe of a constitutional protection for abortion.

In 1992, I dissented in Planned Parenthood v. Casey, in which the majority reaffirmed the core of the Roe decision, saying Roe was “plainly wrong” and “should be overruled.” In a 2000 dissent, he wrote: “Although a state may permit abortion, nothing in the Constitution dictates that a state must do so.” In 2019, I have called the decision “notoriously incorrect.”

Judge Ketanji Brown Jackson

At her confirmation hearing in March, Judge Ketanji Brown Jackson affirmed her stance on Roe being “settled law” and a precedent on abortion cases.

She added that Roe had been relied upon, and that reliance is one of the factors the court considers when it factors when to revisit a precedent.

Judge Jackson was confirmed last month and will join the Supreme Court when Justice Breyer retires at the end of the term.

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