President Bush promised to nominate "strict constructionist" justices to the Supreme Court. He has cited Justices Antonin Scalia and Clarence Thomas as examples of jurists who share his extreme conservative philosophies.
Former Vice President Al Gore made this observation about strict constructionists: "when the phrase 'strict constructionist' is used and when the names of Scalia and Thomas are used as benchmarks for who would be appointed, those are code words, and nobody should mistake this, for saying that Bush would appoint people who would overturn Roe v. Wade."
Potential Supreme Court justices must be closely examined to ensure that they will hold true to the principles of stare decisis, a core principle of our legal system. Neither Justice Scalia nor Justice Thomas respect the precedent of Roe. Though Justice Thomas stated a commitment to stare decisis during his confirmation hearings, his statements and actions show that lip service is not enough. Any nominees to the Supreme Court in the vein of Justices Scalia and Thomas are unacceptable.
Justice Scalia is widely regarded as one of the most conservative voices on the Court. If Chief Justice Rehnquist retires, Justice Scalia could be a favorite to become Chief Justice.
Since joining the Court, Scalia has consistently voted against the protections of Roe, including a failed attempt to impose a requirement of spousal consent before a married woman could have an abortion. He has likened abortion to sodomy, polygamy, incest, and suicide, and has written:
"Roe was plainly wrong - even on the Court's methodology of 'reasoned judgment,' and even more so (of course) if the proper criteria of text and tradition are applied."
Justice Scalia describes himself as an "orginalist." Scalia believes laws should only have their original meaning, or their meaning when they were written. In the context of the First Amendment, Scalia would only recognize rights that were in existence at the time of its inception in 1791.
- Scalia has acknowledged that this approach could have denied women the legal right to vote before the passage of the 19th Amendment to the Constitution.
- Scalia has said: "Right to die - forget about it. Right to abortion - the same thing."
Justice Scalia has even voted to overturn a measure protecting women seeking abortion care from harassment. In the 2000 case Hill v. Colorado, Scalia disagreed with the majority opinion upholding a Colorado statute creating a protective buffer around health care providers and patients seeking medical treatment writing:
"Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today's decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent."
Appointed to the Supreme Court in 1991 after a lengthy and bitter confirmation process, Justice Thomas is considered one of the most conservative justices on the bench, usually voting with Justice Scalia. He is staunchly opposed to abortion and believes that Roe should be overruled. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Thomas joined with Rehnquist when he wrote:
"We believe that Roe was wrongly decided, and that it can and should be overruled."
Also in Casey, Thomas joined Justice Scalia when he wrote:
"The issue is whether it [the right to choose] is a liberty protected by the Constitution of the United States. I am sure it is not."
Justice Thomas has even voted to overturn a measure protecting women seeking abortion care from harassment, joining Justice Scalia's scathing dissent in Hill v. Colorado that termed the Court's decisions regarding abortion a "contradiction of constitutional principles."
At his confirmation hearing, Justice Thomas assured Senators that he believed in the doctrine of stare decisis and denied any strong feelings on the abortion debate. His support of Scalia's dissent in Casey indicates otherwise. Critics have even suggested that Justice Thomas perjured himself in his Senate hearing in order to be confirmed.
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