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  • 2022-05-05 (xsd:date)
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  • Did Conservative Justices Lie About Roe v. Wade? (en)
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  • In May 2022, after news leaked that the U.S. Supreme Court had provisionally voted to overturn the abortion protections enshrined in Roe v. Wade, the left-wing political action committee MeidasTouch briefly caused #LyingGOP to trend on Twitter, with a video that accused five Republican-appointed justices of lying about their intentions to overturn the landmark ruling. MeidasTouch posted the video on various social media platforms and used it to solicit monetary contributions. However, the creators of the video badly misrepresented the full scope of relevant facts in two important ways, and we are issuing a rating of False. First, they engaged in highly selective editing of much longer and more nuanced archival clips of future justices during their U.S. Senate confirmation hearings, in order to grossly misrepresent the substance of what they said. Second, they appeared to misunderstand or misrepresent the meaning of a Supreme Court precedent. In brief, describing a ruling as an important precedent is not tantamount to giving a commitment not to overturn that ruling, or indicating you believe that ruling cannot be overruled. Therefore, the sweeping allegations of premeditated dishonesty on the part of GOP-appointed justices were as poorly supported by evidence as they were wrongheaded. The following is our breakdown of what the MeidasTouch megaviral supercut video claimed, lined up against what the factual record shows. The following is how Meidas Touch presented Thomas's remarks: In this section of the video, MeidasTouch mutilated a 1991 quotation from then-Supreme Court nominee Thomas, and grossly misrepresented the substance and meaning of his remarks. In reality, Thomas absolutely did not provide any assurances on how he might rule on the specific case of Roe v. Wade, nor on the question of abortion rights. The clip of Thomas came from a Senate Judiciary Committee confirmation hearing on Sep. 11, 1991. Readers can watch the exchange in full, or read a full transcript. U.S. Sen. Howard Metzenbaum, D-Ohio, had been attempting to pin down Thomas's views on whether the U.S. Constitution protects abortion rights, and had highlighted what he presented as discrepancies in Thomas's past pronouncements. In particular, Metzenbaum asked Thomas to resolve an apparent gap between his putative support for a constitutionally-enshrined right to privacy, more broadly, and abortion rights in particular. Metzenbaum put it to Thomas that: At the culmination of his remarks, Metzenbaum asked Thomas: In response, Thomas prevaricated, as so many judicial nominees have in recent decades: When Metzenbaum again attempted to pin down the nominee, Thomas again prevaricated, providing the quotation that would be mutilated and misrepresented by MeidasTouch in their video: As the transcript makes clear, MeidasTouch cut off the second half of Thomas's sentence, in which he stipulated that he had no reason...to prejudge or to predispose to rule one way or the other on the issue of abortion. In reality, Thomas was repeatedly urged and asked to make pronouncements on abortion rights, and refused to do so. The notion, therefore, that in this exchange he somehow gave an assurance that he would not ever vote to overturn Roe v. Wade is utterly without basis in fact. The following is how MeidasTouch presented Alito's remarks: Once again, this presentation gives the grossly misleading impression that, in his confirmation hearings, Alito indicated he would not vote to overturn Roe v Wade. In reality, the full scope of his remarks clearly shows that — like most judicial nominees — Alito very carefully avoided giving any assurances about how he might vote on that precedent. The clip in question came from Alito's hearings on Jan. 11, 2006. Readers can examine a full transcript of the relevant exchange, or watch a video of it. Ironically, the starting point for the exchange was the concern expressed by U.S. Sen. Dick Durbin, D-Ill., that Alito had decided to create categories of cases that have been decided by the Court that you will concede have constitutional protection, but you have left in question the future of Roe v. Wade. In other words, Durbin was concerned that Alito had not stated, for the record, that Roe v. Wade was no longer open to overturning, and indeed had in the past asserted that the Constitution does not protect a right to an abortion. So while MeidasTouch presented Alito's remarks as proof that he thought Roe v. Wade was beyond overturning — Roe v. Wade is an important precedent of the Supreme Court — what those remarks actually constituted was Alito's careful avoidance of describing the ruling as such. Here's the key exchange: What Alito is saying here is that Roe v. Wade is clearly a precedent whose conclusions have been repeatedly reaffirmed by the court, and would not lightly be overturned, taking into account the doctrine of stare decisis — the legal principle of deference to precedent expressed in the Latin phrase, which means let stand what has been decided. What Alito is not saying — indeed, what he is scrupulously avoiding saying, despite Durbin's best efforts — is that Roe v Wade is beyond overturning, like various other landmark precedents he had mentioned elsewhere in the hearings, such as Brown v. the Board of Education. So the full scope of Alito's remarks, when viewed objectively and in context, actually show the opposite of what the brief clip, strategically cut away by MeidasTouch, appeared to show. The following is how Meidas Touch presented Gorsuch's remarks. MeidasTouch badly misrepresented Gorsuch's remarks in the same way as it did Alito's. In reality, by describing Roe v. Wade as a precedent worthy of treatment as precedent, Gorsuch was assiduously avoiding going any further or categorizing it as beyond overturning. The pattern should be familiar by now. Gorsuch's remarks came during a Senate confirmation hearing on March 21, 2017, and can be read and viewed in their proper context. During his questioning of the Trump nominee, Judiciary committee chairman U.S. Sen. Chuck Grassley, R-Iowa, asked Gorsuch whether he thought DC v. Heller, a landmark 2008 decision in which the court reaffirmed the Second Amendment right to bear arms, had been correctly decided. Gorsuch said: Gorsuch then effectively reiterated the same response in relation to several other landmark precedents, including Citizens United, Hosanna-Tabor, Gideon v. Wainwright and Roe v. Wade. On the latter case, Gorsuch said: Did Gorsuch indicate that Roe v Wade was particularly or unusually vulnerable to being overturned? No. Did he suggest it was immune to overturning? Absolutely not. The following is how MeidasTouch presented Kavanaugh's remarks. The clip in question came from Kavanaugh's Senate judiciary committee hearing on Sep. 5, 2018, during questioning by U.S. Sen. Dianne Feinstein, D-Calif. Readers can consult the relevant transcript and video. Feinstein had been attempting to pin down Kavanaugh about his views on the status of Roe v. Wade as a precedent, and whether it could be overturned. Kavanaugh, stating the obvious, acknowledged Roe was a precedent and described Planned Parenthood v. Casey as precedent on precedent but declined to go further, despite repeated invitations by Feinstein. Feinstein followed up one last time, asking What would you say your position today is on a woman's right to choose? and Kavanaugh again prevaricated on the future sustainability of Roe v Wade: As we have pointed out in other cases, acknowledging that a ruling is a precedent, or even precedent on precedent, is not the same as saying you would never overturn it. The following is how MeidasTouch presented Barrett's remarks. This is perhaps the most egregious example of all, and comes from the second day of Barrett's Senate confirmation hearing, Oct. 13, 2020. An official transcript was not readily available in this case, but readers can consult video footage. U.S. Sen. Amy Klobuchar, D-Minn., was questioning Barrett about various Supreme Court landmarks, and the concept of the superprecedent — a somewhat ambiguous term coined by former Sen. Arlen Specter. In a 2013 paper, Barrett wrote Superprecedents are cases that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds, and included the following more detailed explanation from law professor Michael Gerhardt: In that 2013 paper, Barrett also explicitly listed a handful of Supreme Court cases — including Brown v. the Board of Education — which were typically cited as superprecedents. Earlier in her confirmation hearing, during questioning by judiciary committee chairman U.S. Sen. Lindsey Graham, R-S.C., Barrett had said that, in the context of legal scholarship, a superprecedent was a precedent that is so well established that it would be unthinkable that it would ever be overruled and Barrett would also similarly tell Klobuchar that the term described a precedent that was so widely-established and agreed-upon by everyone [that] calls for its overruling simply don't exist. That was the background against which Klobuchar asked Barrett whether Roe v. Wade was a superprecedent, and Barrett explicitly excluded Roe v. Wade from the small handful of cases to which that term applies. She said: Reading Barrett's remarks in their proper context clearly demonstrates that she directly and explicitly exploded the frankly laughable claim, made by MeidasTouch, that she had indicated Roe v. Wade was immune to overruling. In fact, she did just the opposite. (en)
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