In a private meeting in 2005, Samuel Alito, who would become the US supreme court justice who wrote the ruling removing the federal right to abortion, assured Ted Kennedy of his respect for Roe v Wade, the landmark 1973 court decision which made the procedure legal in the US.
“I am a believer in precedents,” Alito said, according to diary excerpts reported by the Massachusetts senator’s biographer, John A Farrell, on Monday. “People would find I adhere to that.”
Alito and Kennedy met regarding Alito’s nomination by George W Bush. The nominee also said: “I recognise there is a right to privacy. I think it’s settled.”
Seventeen years later, in his ruling removing the right to abortion, via the Mississippi case Dobbs v Jackson, Alito said the entitlement had wrongly been held to be protected as part of the right to privacy.
“Roe was egregiously wrong from the start,” he wrote this June.
The late Kennedy, a younger brother of US president John F Kennedy, who spent 47 years in the Senate, also questioned Alito about a memo he wrote as a justice department clerk in 1985, outlining his opposition to Roe. Alito told Kennedy he had been trying to impress his bosses.
“I was a younger person,” Alito said. “I’ve matured a lot.”
According to Farrell, Alito told Kennedy his views on abortion were “personal” but said: “I’ve got constitutional responsibilities and those are going to be the determining views”.
Alito was confirmed to the supreme court by the senate, 58 votes to 42. Kennedy voted no.
Farrell reported the excerpts from Kennedy’s diary in the New York Times. A spokesperson for Alito “said he had no comment on the conversation”.
Kennedy died in 2009, aged 77. His Senate seat was filled by a Republican, Scott Brown, who was subsequently defeated by Elizabeth Warren, who quickly emerged as a leading progressive. In June, after Alito’s ruling removed the right to abortion, Warren was a leading voice of liberal anger.
“After decades of scheming,” she said, “Republican politicians have finally forced their unpopular agenda on the rest of America.”
Susan Collins, a Maine Republican but a supporter of abortion rights, said she had been misled in a meeting similar to that between Kennedy and Alito.
Collins said that in the 2018 meeting, when asked about Roe, Brett Kavanaugh told her to “start with my record, my respect for precedent, my belief that it is rooted in the constitution and my commitment to the rule of law” and added: “I understand precedent and I understand the importance of overturning it.”
In 2022, Kavanaugh sided with Alito and three other conservatives in removing the right to abortion.
Collins said: “I feel misled.”
Discussing Alito’s meeting with Kennedy, Stephen Gillers, a New York University law professor and legal ethics specialist, told the Times: “No serious court watcher can doubt that what Alito said in Dobbs he deeply believed in 2005. And long before then.”
Farrell’s previous books include a biography of Richard Nixon. On Monday, reviewing Ted Kennedy: A Life, the Associated Press wrote: “Teddy lived long enough for his flaws to be fully exposed. All are laid bare in this book – the drinking, the infidelity, the selfishness, the casual cruelty, the emotional isolation.
“The central riddle of Kennedy is how these weaknesses existed alongside the benevolence, loyalty, perseverance and wisdom that made him one of the most influential senators in modern American history.”
The AP review noted Kennedy’s silence during another supreme court nomination, that of Clarence Thomas in 1991, writing: “When Anita Hill accused Thomas of sexual harassment, Kennedy was in no position to help lead the fight against him. He passed his time at the confirmation hearings by doodling sailboats, and Thomas was confirmed.”
In June this year, Thomas joined with Alito to overturn Roe v Wade. In a concurring opinion, he suggested other privacy based rights could be next, including the rights to contraception and same-sex marriage.
