Then-Supreme Court nominee Samuel Alito told Democratic Sen. Ted Kennedy in late 2005 that he respected Roe v. Wade and that he believed a right to privacy was “settled” law, according to entries in the late senator’s diary included in a new biography and published in The New York Times.
“‘I am a believer in precedents,’” then-Judge Alito told Kennedy, according to a part of the diary reportedly recorded by the senator and later transcribed. “’People would find I adhere to that.’”
Quotes from the diary appear in “Ted Kennedy: A Life,” by John A. Farrell, who published excerpts in the Times on Monday.
“‘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,’” Alito is quoted as saying in the diary, according to Farrell. “’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.’”
Alito’s assurances to Kennedy, a fierce supporter of abortion rights, did little to persuade Kennedy, who eventually voted against Alito’s confirmation. The statements stand in marked contrast to what Alito said about Roe in 2022, when he penned the high court’s opinion overturning the 1973 decision and nearly 50 years of precedent.
The Senate confirmed Alito in January 2006 by a vote of 58-42. Kennedy died in 2009.
The diary, according to Farrell, says that Kennedy confronted Alito on a memo he wrote in 1985 as a lawyer in the Reagan administration, in which he said the Constitution did not protect a right to an abortion.
“Judge Alito assured Mr. Kennedy that he should not put much stock in the memo,” Farrell wrote. “He had been seeking a promotion and wrote what he thought his bosses wanted to hear. ‘I was a younger person,’ Judge Alito said. ‘I’ve matured a lot.’”
Alito wrote in his June decision that Roe “was egregiously wrong from the start,” adding: “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
The 5-4 majority opinion handed the issue back to the states, and already, laws that ban abortion or severely restrict the procedure have gone into effect in about a dozen states following the ruling.
At his confirmation hearing in 2006, Alito promised to keep an open mind on abortion cases and to respect stare decisis, the legal principle by which precedent takes on increasing importance.
“Today, if the issue were to come before me,” he said in 2006, “if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that that we’ve been discussing, and that’s the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made.”
Several other justices who joined Alito’s decision earlier this year also gave senators very measured statements on their position on Roe during their own confirmation processes, including Neil Gorsuch, who was former President Donald Trump’s first appointment to the court.
“I would have walked out the door. It’s not what judges do,” Gorsuch said during his confirmation hearing when asked how he would have reacted if Trump asked him to overturn Roe.