A March 2003 email exchange leaked to The New York Times suggests Supreme Court nominee Brett Kavanaugh does not think Roe v. Wade is the “settled law of the land.”
Kavanaugh has repeatedly dodged questions during his confirmation hearing about abortion rights under the 1973 landmark decision, giving vague answers to senators on whether or not he agrees with the law. On Wednesday, he told the committee that he thinks Roe is “an important precedent of the Supreme Court,” reiterating the point on Thursday. As critics and activists signaled the alarm that his confirmation could mean the end of Roe v. Wade, he tried last month to assure Sen. Susan Collins (R-ME), a presumed swing vote, that he views Roe as “settled law.”
As ThinkProgress previously reported, it is all but guaranteed that Kavanaugh will help overturn or hobble Roe should he be confirmed by the Senate. And emails leaked to the Times — after the Senate Judiciary Committee Republicans deemed them confidential — confirm these suspicions.
“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,” said Kavanaugh in an email he sent during his time in the George W. Bush White House.
The remark was in response to a draft opinion article in support of one of Bush’s judge nominees, who said, “It is widely accepted by legal scholars across the board that Roe v. Wade and its progeny are the settled law of the land.”
“In the nick of time, Kavanaugh’s true belief that Roe v. Wade is not settled law has just been exposed. What else is Kavanaugh hiding?” said Fatima Goss Graves, president and CEO of the National Women’s Law Center.
On Thursday, Sen. Dianne Feinstein (D-CA) asked Kavanaugh about these emails and whether he thinks Roe is settled law.
“That draft letter, it was referring to the views of legal scholars,” said Kavanaugh. “At that time I believed Chief Justice [William] Rehnquist and Justice [Antonin] Scalia were still on the court at that time. But the broader point was simply that I think it was overstating something about legal scholars.”
He again reiterated that he views Roe as “an important precedent of the supreme court” but wouldn’t elaborate further, saying “you can’t give a thumbs up or thumbs down and maintain the independence of the judiciary.”
The Supreme Court now has four conservative justices who would be willing to overturn Roe or seriously undermine it: Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Should Kavanaugh be confirmed, he’d be the fifth decisive vote — and this is why pro-choice advocates are preparing for a world with a seriously hobbled Roe.