Samuel Alito Cared A Lot More About The Precedent Of Roe *Before* He Had A Lifetime Appointment To The Most Powerful Court In America

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A new report from the New York Times reveals that Justice Samuel Alito assured Senator Ted Kennedy he believed Roe v. Wade was settled law and that he believed in the case’s precedent. Yes, the very same Alito that would go on to write the decision in Dobbs v. Jackson Women’s Health with the infamous line, “We hold that Roe and Casey must be overruled.”

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The article by John Farrell, who also wrote the recently released book “Ted Kennedy: A Life,” provides details from the late senator’s diaries. In November of 2005, as Alito sought confirmation onto the high court, he privately told the senator — a believer in abortion rights — that the law was “settled,” assuring Kennedy, “I am a believer in precedents.”

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It’s difficult to read the way in which Alito pulled the wool over Kennedy’s eyes. But the diary entries confirm his stance at the time: “I believe that there is a right to privacy. I think it’s settled as part of the liberty clause of the 14th Amendment and the Fifth Amendment.” He also said, “So I recognize there is a right to privacy. I’m a believer in precedents. I think on the Roe case that’s about as far as I can go.”

So what’s the difference between what he believed about Roe in 2005 and deciding to overturn it in 2022? Quite obviously, it’s a lifetime appointment.

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Alito said what he had to say to get the job he wanted. Actually, that’s the most relatable part of entire incident — who hasn’t overstated their love for privilege logs to secure a job? The difference, of course, is that you then didn’t use that job to dismantle the entire concept of attorney client privilege. Because that’s what Alito did.

He bided his time, waiting for a far-right super majority. And once Ruth Bader Ginsburg died and her seat was filled by Amy Coney Barrett, he had his moment. That’s when he penned the razed earth Dobbs decision that carelessly destroyed reproductive freedom in this country without even a backwards glance at precedent (a major distinction when comparing Dobbs to other cases that overturned precedent).

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Which means Alito joins the ranks of Neil Gorsuch and Brett Kavanaugh of Justices willing to exaggerate if not outright lie about their opinions on Roe to get their job. Not that it matters much. Even if the Democrats manage to hold onto the House in the midterm elections, and there were actually articles of impeachment voted on, they’re still keeping their jobs. Land matters more than people in the Senate, and so there’s virtually no chance of there being 60 senators willing to get these folks out of power. So, we’re stuck the justices who are ensconced in their seats on the Supreme Court until they shuffle off this mortal coil or, if in the twilight of their careers (a solid 30 years from now), a Republican happens to be president.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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Abortion, Courts, Roe v. Wade, Samuel Alito, Supreme Court