According to a draft opinion leaked Monday night, the Supreme Court has a majority of justices who are willing to completely overturn Roe v. Wade. And Sen. Susan Collins of Maine, one of the few elected Republicans still willing to publicly defend abortion rights, seems to feel that she has been bamboozled.
Collins voted for two of former President Donald Trump’s three nominees to the Supreme Court: Brett Kavanaugh and Neil Gorsuch. She went out of her way to vouch for both of them when their opponents predicted they’d support overturning Roe.
There was never any real question about what a conservative supermajority on the Supreme Court was expected to do.
When Justice Anthony Kennedy retired in 2018, Collins told CNN’s Jake Tapper that she’d had a “very long discussion with Justice Gorsuch in my office” about Roe and that “he pointed out to me that he is a co-author of a whole book on precedent.” She also told Tapper that she wouldn’t “support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.”
She said the same when Kavanaugh was nominated to fill Kennedy’s seat. After meeting with the nominee, Collins declared on the Senate floor that Kavanaugh wasn’t about to kill the right to an abortion laid out in Roe. “Protecting this right is important to me,” she said. “His views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.”
Now, faced with a draft opinion that would completely undo Roe’s protections, she apparently feels like she’s been led astray. “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said in a statement Tuesday morning. “Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”
Collins portrays herself as the victim of perfidy here. How could she have known that Kavanaugh and Gorsuch might say one thing and do another? This shouldn’t be the shock that Collins claims it is. There was never any real question about what a conservative supermajority on the Supreme Court was expected to do. It’s why they got their jobs in the first place.
Despite her professed support for abortion rights, Collins is in the extreme minority within her party. The last time the GOP bothered to craft a party platform in 2016, overturning Roe was an explicitly stated goal for future Supreme Court nominees:
We understand that only by electing a Republican president in 2016 will America have the opportunity for up to five new constitutionally-minded Supreme Court justices appointed to fill vacancies on the Court. Only such appointments will enable courts to begin to reverse the long line of activist decisions — including Roe, Obergefell, and the Obamacare cases — that have usurped Congress’s and states’ lawmaking authority, undermined constitutional protections, expanded the power of the judiciary at the expense of the people and their elected representatives, and stripped the people of their power to govern themselves.
Gorsuch and Kavanaugh were also shepherded toward nomination and confirmation with the support of the conservative Federalist Society and its influential vice president, Leonard Leo. It was Leo’s list of potential justices that Trump drew from time and again during his presidency. “No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo,” conservative blogger Ed Whelan wrote in 2016. The idea that any of Leo’s picks for the Supreme Court would be averse to decimating, if not eliminating, abortion rights has always been delusional.
Another of Leo’s picks, Samuel Alito, wrote the draft opinion that has now leaked. He gave the same half-hearted paeans to precedent as Gorsuch and Kavanaugh during his own nomination hearings in 2005. But Alito’s position on Roe was already clear by then. In a 1985 application to become an assistant attorney general, he wrote that the “Constitution does not protect the right to an abortion.” He never disavowed that belief, even when pressed directly by Sen. Chuck Schumer, D-N.Y.
“Regardless of case law, in 1985, you stated — you stated it proudly, unequivocally, without exception — that the Constitution does not protect a right to an abortion. Do you believe that now?” Schumer asked.
At the time, Alito refused to answer directly. He claimed, much as Gorsuch and Kavanaugh did, that it would depend on the case before him and that he would apply stare decisis, the idea that precedents have to matter when ruling on cases. We now know, based on his blistering assault on Roe and the subsequent Planned Parenthood of Southeastern Pennsylvania v. Casey, that he absolutely still believes what he wrote in 1985.
Collins can protest all she wants, but it has always been obvious to everybody that overturning Roe and allowing states to outright ban abortion has been the conservative movement’s goal.
But Collins believed Alito. She said after meeting with him that the judge told her that "he has tremendous respect for precedent and that his approach is to not overturn cases due to a disagreement with how they were originally decided." She then joined all but one of her GOP colleagues in voting in favor of Alito’s confirmation.
Collins can protest all she wants, but it has always been obvious to everybody that overturning Roe and allowing states to outright ban abortion has been the conservative movement’s goal. A national ban on abortion is the next war that conservative activists are preparing to wage. Collins has attempted to play the middle, voicing support for abortion rights while taking no action to codify Roe’s provisions into law.
She’s chosen the route that would allow her plausible deniability in the event that Alito’s draft opinion becomes final. But the idea that Collins couldn’t see this coming is absurd — either she has lied to voters about her support for Roe or lied to herself about the obvious consequences of her actions.