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Supreme Court Confirmation Hearings, Abortion, and the Second Amendment

By on August 24, 2022 Categories: ,

During her March confirmation hearing, Justice Ketanji Brown Jackson (who did not decide any Second Amendment cases as a district or appellate judge) was asked by Republican Senator Chuck Grassley:  “Do you believe the individual right to keep and bear arms is a fundamental right?”  Justice Jackson responded that “the Supreme Court has established that the individual right to keep and bear arms is a fundamental right.”

We can expect to see similar questions posed to future Supreme Court nominees, especially those nominated by Democratic presidents, in a move that mirrors the questions that Democratic politicians posed to Republican judicial nominees about the Court’s abortion decisions.  Most, if not all, Supreme Court nominees over the past five decades—especially judicial conservatives—have undergone extensive questioning by senators about the Court’s abortion jurisprudence.  The nominees invariably gave a similar answer as Justice Jackson.  They stated, with varying degrees of enthusiasm, that Roe (and, later, Casey) were holdings that justices were bound to follow under the principles of stare decisis.  For example, Chief Justice Roberts said that Roe was “settled as a precedent of the Court, entitled to respect under principles of stare decisis.”  Justice Gorsuch stated, somewhat cryptically, that “a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

Certain nominees, such as Justice Thomas, were perhaps even more careful—articulating the holding of the case, but declining to answer any additional questions about Roe because the issue might come before the Court in the future:

Judge THOMAS. [The] Supreme Court, of course, in the case of Roe v. Wade has found an interest in the woman’s right to—as a fundamental interest a woman’s right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.

There was little discussion of the Second Amendment in pre-Heller confirmation hearings, perhaps not surprisingly given settled law for many years (at least among the lower federal courts) that the amendment applied only in the militia context. At Chief Justice Roberts’ 2005 confirmation hearing, he was asked by Democratic Senator Russ Feingold about the Fifth Circuit’s 2001 individual-rights opinion in United States v. Emerson.  Chief Justice Roberts responded that he read United States v. Miller to leave the question of whether the amendment protects an individual right open, but declined to provide a substantive answer because the issue might come before the Court.  Roberts Tr. at 360-61.  Justice Alito’s confirmation hearing in 2006 (just two years before Heller) lacked any discussion of the Second Amendment.  In marked contrast, Justice Alito was questioned extensively about his 1996 dissenting opinion in United States v. Rybar, where he would have held the Firearm Owners Protection Act of 1986 unconstitutional as regulating conduct outside the scope of the Commerce Clause.  Alito Tr. at 377-78, 395-98.

Since Heller was decided in 2008, each justice to receive a confirmation hearing (Justices Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson) has been asked a variation of the Second Amendment question posed to Justice Jackson earlier this year:  do you accept the Supreme Court’s holding that the Second Amendment protects an individual right to keep a gun for self-defense?  The nominees have universally responded in the affirmative, while generally refusing to answer follow-up questions about related Second Amendment issues that might come before the Court in the future.  Sotomayor Tr. at 67-68; Kagan Tr. at 65; Gorsuch Tr. at 75; Kavanaugh Tr. at 249; Barrett Day 2 at 12:02-12:50.

After the Supreme Court’s decision in Dobbs, it seems clear that vetting Supreme Court nominees by asking them to affirm that holdings are settled precedent has little real-world impact.  Roe and Casey were ultimately overruled by justices who, in their confirmation hearings, stated that these holdings were “settled precedent.”  At least as a strict matter of linguistics, there’s nothing inherently nefarious here.  The nominees simply refused to answer any forward-looking questions about Roe and Casey, and their answers were always phrased using qualifying language.  In other words, the nominees never said that they would not overrule Roe, or that the Court could never do so, but rather that Roe and Casey had precedential value in the same way as all Supreme Court decisions and could only be overruled by applying the relevant legal framework.  They uniformly refused to answer the question of whether they themselves would vote to overturn Roe and Casey.

Why, then, were these questions consistently posed to Supreme Court nominees over the past four decades?

  • First, it could be that the questions were pure political theater. Senators are aware there is no real-world value to eliciting a statement about the precedential value of a certain Supreme Court decision, and they know that getting a nominee to agree that a certain case is “good law” does not signal anything about the nominee’s future intentions.  Rather, the senators are trying to score “political points”:  I care deeply about a right to abortion, so I am going to ask many questions about the nominee’s acceptance of Roe and Casey to illustrate how important I think that right is.  Supreme Court confirmation hearings were first televised in 1981, shortly after Roe was decided, and lengthy questioning of the nominee is a relatively recent development.
  • Second, senators may recognize the lack of impact on judicial decision-making but nevertheless believe such questions are important for potential future political In other words, if a senator elicits an answer that Roe and Casey are settled precedent, that senator (or others within his or her party) may subsequently be able to use that answer to attack the integrity or legitimacy of the Justice and/or the Court, if the decisions are overruled in the future.  At the extreme end of the spectrum, this could include accusing justices of lying under oath at their confirmation hearings (although, as noted above, it’s tough as a linguistic matter to equate a vague statement that a case was decided a certain way and constitutes precedent as akin to saying that it can never be overruled).
  • Third, senators might be attempting to affirm, and re-affirm, support for particular Supreme Court decisions in the public sphere. The idea here would be to create a feedback loop that cements public and judicial support for certain holdings.  The more nominees appear at confirmation hearings and answer affirmatively that a certain case is well-settled, the more it feels like set doctrine (or so-called “super precedent,” a term popularized during the confirmation hearings of Chief Justice Roberts and Justice Alito).

While one shouldn’t expect the same questions about abortion in future confirmation hearings given Dobbs, the Second Amendment is likely to follow a similar course:  we’ll see more time at confirmation hearings devoted to discussing Second Amendment cases, and more aggressive questioning on these issues from both sides of the aisle (including, likely, questions from Republican senators about why Heller and Bruen are perhaps more entitled to precedential value than an “average” Supreme Court decision).  I suspect that all three theories put forward above are in play with these types of questions.  Even though the abortion experience illustrates that support affirmation loops don’t work as planned after justices are confirmed, senators may still attempt the same strategy of eliciting support for Heller and Bruen from all future nominees.

Another interesting aspect here is Bruen’s intensive focus on history.  Nominees have often sidestepped questions from senators with some variation of:  I can’t answer that question because the issue may become before the Court, and I have not prejudged it.  And, if asked whether a certain right is “fundamental,” the nominee might respond that the Court has held it fundamental in X case, but I have no personal opinion.  When future nominees are questioned about Bruen, it might be more difficult to employ such tactics.  Consider a line of questioning that starts with whether the nominee accepts the holding in Bruen.  The nominee responds:  “Yes, it is Supreme Court precedent, all lower courts are bound to apply it.”  But instead of pushing the nominee on whether the decision is “super-precedential” in some way, the questioner then attempts to lock the nominee into a certain version of history.  For example:  “Bruen observed that surety laws passed in the 19th century are not analogous to exceptional-circumstance public carry laws today—do you agree?” 

While methodological questions in the abortion context were often tied up in the specific holding (i.e., I accept that Roe is settled law, and therefore I accept the viability standard), Bruen is more susceptible to standalone historical questions that could be applicable in other cases.  Think about questions such as:  “Do you agree that 20th century history is not relevant for judging the constitutionality of gun regulations under the Second Amendment, which was ratified in 1791?”  It could be easier to trip up a nominee on these questions because it’s not clear how much of Bruen’s historical analysis was strictly necessary to its holding.[1] 

We can expect future nominees to face questions related to Bruen’s methodology, the relative strength of Bruen as precedent, and what reliance interests might exist surrounding the Bruen decision moving forward.  But, as we saw in the abortion context, there’s no guarantee at all that these questions will actually serve to cement the holding in any real way.

[1] In multiple places, Bruen conducts detailed analysis of historical laws after first observing that those law (even if analogous) would likely not be enough to establish a historical tradition because they are too small in number or were passed too long before or after the Founding.