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Why Josh Hawley’s New Supreme Court Litmus Test Is False Advertising


Sen. Josh Hawley has announced that he “will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.” By “explicitly,” he means, “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

The announcement has earned headlines for Hawley, who is tapping into the understandable frustration renewed among conservatives in the aftermath of the Supreme Court’s most recent term. But his new test is manipulative false advertising, for two reasons: (1) he knows it won’t work, and (2) it stops short of demanding a full commitment from judicial nominees that they would overturn Roe v. Wade, which is what many conservatives want, but that he has been unwilling to call for.

Hawley Knows His Test Won’t Work

When David Souter was nominated to the Supreme Court, he would have passed the Hawley test with flying colors. As the attorney general of New Hampshire, Souter filed a brief opposing the use of public funds to finance what the brief called “the killing of unborn children.” He had also publicly opposed the repeal of the state’s restrictive abortion laws even though Roe had invalidated them. He told a newspaper that such a repeal would make the state “the abortion mill of the United States.”

Similarly, by his own account, Justice Anthony Kennedy was brought up to think of abortion as a “great evil.” He once denounced the Roe decision as the “Dred Scott of our time.” Three years before he joined the Planned Parenthood v. Casey opinion, he was still criticizing Roe, joining original Roe dissenters William Rehnquist and Byron White in Webster v. Reproductive Health Services in 1989—in a plurality opinion that would have virtually overturned Roe. It’s hard to imagine a case study more tailored to Hawley’s test.

Justice Sandra Day O’Connor had also weighed in on Roe and abortion before joining the majority in Casey. As she wrote in Thornburgh v. American College of Obstetricians and Gynecologists: “This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. . . . That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade.

Some liberals have criticized Roe, too. For example, Justice Ruth Bader Ginsburg stated on the record that she thought Roe was incorrect. She would have reached the same result by different legal reasoning. Still, she had “acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

Hawley’s test is not only vastly overinclusive, greenlighting justices he would certainly not want to support, but also underinclusive. Justice Clarence Thomas, the Supreme Court’s most vocal critic of Roe and the most willing to overturn erroneous precedent, testified in his confirmation hearing that he could not recall debating or stating the merits of Roe even in private discussion, and added that he had not decided its merits in his own mind. I guess Hawley would have voted against Justice Thomas, but in favor of Souter, Kennedy, and O’Connor?

Perhaps Hawley believes the conservative legal movement has made so much progress since the 1980s that such Souter/Kennedy/O’Connor scenarios are easier to avoid now. But that possibility is at odds with his PR campaign to discredit the conservative legal movement and position himself as the last-minute hero of a story that has been playing out for decades.

This Test Isn’t Binding on Supreme Court Rulings

Hawley’s test does not require nominees to take any action whatsoever with respect to precedent after confirmation. It is possible that Hawley was unaware of the history behind his test, but that seems unlikely. He came up through the conservative legal movement and clerked for Chief Justice John Roberts on the Supreme Court, so he is undoubtedly aware that many justices have flip-flopped on precedent, especially in the abortion context.

Take Roberts as an example. Just this term he sided with the liberal majority in June Medical Services L.L.C. v. Russo, taking the exact opposite position he had taken just a few years earlier in Whole Woman’s Health v. Hellerstedt, when he joined the conservatives. (His about-face occurred despite his statement that he still thought Hellerstedt wrongly decided.) Roberts had also been on the record about Roe before his nomination. None of that stopped him from invalidating an abortion law.

So if Hawley intends to keep passing this off as a test that does something real to fix erroneous precedent, and not just tiptoe around that question, he will have to demand more. Instead of looking for nominees to simply mouth words about Roe being wrongly decided, is Hawley willing to ask nominees to commit to overrule Roe? Does he have some way of then forcing them to live up to that commitment?

If he did those things (which he has not done for any nominee so far) it would make a mockery of the law by creating the expectation that future justices must pledge certain outcomes as a condition of their confirmation.

Justice Antonin Scalia had people like Hawley in mind when he said: “How upsetting it is that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”

Scalia knew that if a senator can bind a nominee on abortion, there is no principled way to keep the floodgates closed when political winds have shifted to some other issue. From abortion and the Second Amendment to the death penalty and Obamacare, senators on both sides would demand specific commitments from justices. Sooner than later, a branch that has been steadily moving away from the lawlessness of the Warren Court era toward constitutionalism would be transformed into a privy council that follows the explicit political preferences of a gang of senators.

Hawley might want a litmus test, or even a privy council, but that would undo the work started by Ronald Reagan, Ed Meese, Scalia, and Thomas to keep the courts from behaving like super-legislatures.

The Real Solution Is More Hard Work, Less Grandstanding

The root problem with Roe is that it is unmoored from the text and original meaning of the Constitution. The solution to that problem is to continue working really hard to secure the nomination and confirmation of judges who have demonstrated their courageous commitment to the text and original meaning of the Constitution.

Unlike Hawley’s test, which has been failing for decades, the search for proven, courageous constitutionalists has been bearing more and more fruit. Which justices followed the Constitution in June Medical? Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. These are the justices who, at the time of their nomination, had the longest records of principled jurisprudence, grounded in textualism and originalism, and had demonstrated the courage to apply those principles.

Contrast that with Planned Parenthood v. Casey, which had an all-Republican plurality. Or take a look at Trump’s extraordinary lower-court appointments, judges like Amy Coney Barrett, Lisa Branch, Kyle Duncan, Barbara Lagoa, Trevor McFadden, Andy Oldham, Lawrence VanDyke, and many others.

Hawley is eager to publicly condemn the conservative legal movement, but he has voted for virtually all of President Trump’s nominees, and presumably he voted his conscience. How many of Trump’s judges had stated on the record that Roe was wrongly decided? Does Hawley regret voting for the ones who didn’t?

Historically, the biggest disappointments to the conservative legal movement have been those justices who lacked the record that so many of President Trump’s judges brought to the bench. Think of Chief Justice Earl Warren, the notoriously radical appointee of President Eisenhower, who earned his spot for his political alliance with the president despite never having been a judge. Or Souter, whose brief tenure on the First Circuit Court of Appeals gave little indication of his judicial approach, setting aside his earlier stated positions on Roe, which earned him the opposition of the abortion lobby.

Roberts ascended to the bench without embracing either originalism or textualism, and his two-year record on the D.C. Circuit produced limited evidence of a judicial philosophy. In an era of aggressive judicial filibusters and a 60-vote threshold, perhaps Roberts was the best nominee who could have been confirmed. But in his case, the lack of methodological mooring, combined with a lack of courage, has resulted in a troubling pattern of judicial overreach.

Critics might point to Gorsuch as an example of a justice who was vetted for a demonstrable record of courageously applying the Constitution, yet he decided to rewrite the Civil Rights Act of 1964 in Bostock. But that decision was as inconsistent with the text of the law as it was with Gorsuch’s long record to that point.

Gorsuch is still new to the bench, but Bostock is probably evidence that even the best justices have made terrible decisions. Scalia’s decision in Employment Division v. Smith, for example, undermined religious liberty so dramatically that Congress and state legislatures had to vote to restore the proper legal protection for our first liberty.

Would Gorsuch have been less likely to adopt a hyper-literalist approach in Bostock if he had been publicly critical of Roe before his nomination? That’s silly. After all, we are talking about someone who wrote a book against assisted suicide and euthanasia, and who joined Justice Thomas in the Supreme Court’s recent June Medical decision. In fact, Gorsuch has agreed with Thomas more than any other of his colleagues.

Even taking the frustrating Bostock case into consideration, the progress conservatives have made in the judicial arena is extraordinary. Courts have gone from considering the text of a statute as an afterthought to viewing it as central.

Ask anyone who litigates regularly in federal courts on religious freedom, limited government, the Second Amendment, property rights, freedom of political speech, and yes, abortion whether the environment is more favorable now than it was 30 years ago. All these areas of law and more have seen a major shift toward constitutionalism.

I understand the frustration of my conservative friends and allies. I share that frustration. Our job is clearly not done yet. But that doesn’t mean we should fall for the quick fix promised in a false advertisement.

Hawley’s test has failed many times. And it does absolutely nothing about erroneous precedent. If he plans to change that, and demand the kinds of assurances he has been unwilling to demand so far, Hawley might earn some accolades. But he would be abandoning the legacy of Reagan, Meese, Scalia, and Thomas, and trading the concept of the rule of law for judicial imperialism. ​