Ted Kennedy and Roe’s Diary vs. Samuel Alito’s Wade Assurance


U.S. Supreme Court nominee Samuel A. Alito meets with U.S. Senator Ted Kennedy (D-MA) as Alito awaits a confirmation hearing that will decide whether he becomes a Supreme Court Justice.

A new report of a conversation between Associate Justice of the Supreme Court Samuel Alito and Edward “Ted” Kennedy (D-Mass) highlighted what the judge said to the late senator in 2005 and what the judge actually did 17 years later when he wrote the notice quashing Roe vs. Wade.

A New York Times play by author John A. Farrel (including the book Ted Kennedy: A Life was released Tuesday) revealed details of a private conversation in 2005 between Alito and Kennedy. At the time, as Alito sought Senate confirmation of his senior judicial nomination, the senator transcribed the details of the conversation and his reactions to his personal diary. According to diary entries, Kennedy met with Alito and the two discussed the future of Roe vs. Wadethe 1973 SCOTUS precedent in which the Court ruled that the right to have an abortion is protected by the First Amendment.

According to Kennedy’s diary entry, Alito assured him in response to a question about Roe’s future, “I’m a fan of the precedents,” and added, “People would find me buying into that.”

Alito also clarified in his conversation with Kennedy, “I recognize that there is a right to privacy,” and said, “I think that’s settled.

Admittedly, these exchanges between Alito and Kennedy are reminiscent of the kind of verbal sparring other conservative justices engaged in with questions about deer to their own audiences.

In 1991, Clarence Thomas sworn to be “impartial” and to address legal controversies only after “having paid[ding] personal opinions” that might be related to the underlying issues.

Neil Gorsuchappointed by a president who campaigned on promises to install anti-abortion judges, said at his confirmation hearing in 2017 that he refused to take a position on deer. Gorsuch told the senator. Lindsey Graham (RS.C.) that he “would have walked through the door” if donald trump specifically asked him to reverse deer before his appointment.

Gorsuch repeatedly called the precedent, “the anchor of the law”, and acknowledged that deer was a decades-old precedent that had been reaffirmed. Gorsuch also remarked that “a good judge will consider [Roe] as precedent of the United States Supreme Court worthy of precedent treatment like any other.

Next year, Brett Kavanaugh repeated both Thomas’s and Gorsuch’s boilerplate and told the committee that he would be open-minded and that he considered Roe “established as a precedent”. At the time, Senator. Susan Collins (R-Maine) said she met with Kavanaugh privately and he specifically said he considered deer be an “established law”.

Amy Coney Barrett gave perhaps the strongest indication of Roe’s eventual fate during her 2020 confirmation hearings when she said she was not considering deer be a “super precedent”. Barrett, however, said she would not “commit in advance” to having a pre-determined schedule as a judge.

Although the candidates’ responses may have seemed to indicate a reluctance to review the deer ruling on abortion, those who know the history of the Supreme Court have probably always interpreted them differently. assurances that deer constituted “established precedent” were more accurately understood as an acknowledgment that deer was the governing law at that time – not a statement that deer can never be overthrown. After all, Plessy v. Ferguson, Hammer versus Dagenhartand Bowers vs. Hardwick were all at once “established precedent”.

Ted Kennedy would have been well aware in 2005 that judicial candidates provide carefully crafted and technically ambiguous responses to inquiries in court and in private. It was in this context that Kennedy, a staunch proponent of abortion rights, pushed Alito further on the issue.

Kennedy privately questioned Alito about a memo he had written in 1985 while Alito was working as a lawyer in the Reagan administration’s Justice Department. The memo unequivocally details a legal strategy to possibly cancel Roe vs. Wade.

Alito’s response to Kennedy on this was surprisingly distinct from Alito’s 2020 words in Dobbs v. Jackson Women’s Health Organizationaccording to Time report:

Judge Alito assured Mr. Kennedy that he shouldn’t place much weight on the memo. He was looking for a promotion and wrote what he thought his bosses wanted to hear. “I was a younger person,” Judge Alito said. “I have matured a lot”

Kennedy was unconvinced and ultimately voted against confirming Alito to the Supreme Court. The senator also specifically noted a key factor in his reluctance to back Alito: “If the judge could configure his beliefs to get that promotion of 1985…how could he pretend to get a lifetime appointment to the highest court in the world. country ?”

In the end, of course, Alito did vote to cancel deer and author of the appellant opinion deer “Enormously wrong from the start.” Despite Alito’s carefully worded assurances to Kennedy that he “recognizes” an “established” right to privacy, the justice supported the majority’s reasoning on the Constitution’s lack of explicit language making “privacy “a protected right.

Warming up to Judge Barrett’s thought of “super precedent,” Alito went on to say in the ruling that the diversity of Americans’ opinions on the subject of abortion is precisely what compels the subject to be brought back under the control of the state – a line of logic conspicuously absent from Justice’s exchanges with Kennedy in 2005.

About watch the decisionAlito’s feeling in the Dobbs decision had nothing to do with his unique wish to be “a follower of precedent”. In DobbsAlito railed against deer the precedent, calling it the “deeply prejudicial” and “unworkable” “original idea” of the 1973 Court, and comparing its illegality to that of Plessy v. Ferguson.

[Image via Win McNamee/Getty Images]

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