Washington—Senator Dianne Feinstein (D-Calif.) today questioned Judge Ketanji Brown Jackson during her Supreme Court nomination hearing on a woman’s right to an abortion.
High-resolution video of the exchange is available here and a transcript follows:
Senator Feinstein: “One of the issues that I often discuss with nominees, particularly to the Supreme Court, is the issue of abortion. I’ve asked the three most recent Supreme Court nominees about this issue, and so I’d like to discuss it a bit with you today.
In 2017, I asked Justice Gorsuch about this during his confirmation hearing. I asked him to expand on a comment he had made about his belief that precedent is important because it adds stability to the law. In response, Justice Gorsuch reiterated his belief that precedent is important because ‘Once a case is settled, that adds to the determinacy of the law.’ He also stated that Roe has been reaffirmed many times.
I also spoke with Judge Kavanaugh about this issue in 2018. I asked him whether he believes that Roe was settled law, and if so, whether it was correctly settled? Justice Kavanaugh said that Roe ‘is settled as a precedent of the Supreme Court.’ He said that Roe ‘has been reaffirmed many times over the past 45 years … and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey.’ And he described Casey as ‘having the value of a precedent on precedent.’
I most recently spoke about this issue with Justice Barrett in 2020. I asked her whether she agreed with Justice Scalia’s view that Roe was wrongly decided. She committed to ‘obey all the rules of stare decisis’ if faced with the question of whether to overrule Casey. She said she had ‘no agenda to try to overrule Casey.’
So here’s the question, do you agree with Justice Kavanaugh that Roe v. Wade is settled as a precedent and will you, like Justice Barrett, commit to obey all the rules of stare decisis in cases related to the issue of abortion?”
Judge Jackson: “Thank you, senator. I do agree with both Justice Kavanaugh and Justice Barrett on this issue. Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy. They have established a framework that the court has reaffirmed and in order to revisit, as Justice Barrett said, the Supreme Court looks at various factors because stare decisis is a very important principle.
It provides and establishes predictability, stability. It also serves as a restraint in this way on the exercise of judicial authority because the court looks at whether or not precedents are relied upon, whether they’re workable, in addition to whether or not they’re wrong, and other factors as well.
So I agree with both of those statements that you read.”
Senator Feinstein: “Well, let me add one to that and then we’ll move on. I’m particularly interested in the case of Roe v. Wade.
Roe was decided nearly 50 years ago and it’s been reaffirmed over a dozen times since then. So my question is this: does Roe v. Wade have the status of being a case that is a “super precedent” and what other Supreme Court cases do you believe have that status?”
Judge Jackson: “Well, Senator, all Supreme Court cases are precedential, they’re binding and their principles and their rulings have to be followed. Roe and Casey, as you say, have been reaffirmed by the court and have been relied upon. And reliance is one of the factors that the court considers when it seeks to revisit or when it’s asked to revisit a precedent.
And in all cases, those precedents of the Supreme Court would have to be reviewed pursuant to those factors because stare decisis is very important.”