Supreme Court Justice Samuel Alito once told the late Ted Kennedy, a Democrat who boasted his support for abortion access, that Roe v. Wade was “settled,” according to newly emerged excerpts from the former Massachusetts senator’s private diary.
Long before Alito authored the summer 2022 opinion that overturned nearly 49 years of abortion access precedent under Roe, he was a judge on the 3rd U.S. Circuit Court of Appeals awaiting confirmation after his nomination by former President George W. Bush in 2005. The judge was in a private meeting in Kennedy’s office on Nov. 15 that year when he told the Democratic senator that he recognized “there is a right to privacy,” referring to the constitutional rationality used to determine the 1973 Roe case. “I think it’s settled,” Alito purportedly said.
“I am a believer in precedents,” Alito said, adding, “People would find I adhere to that,” according to a moment the senator recorded and later transcribed in his diary. The 2005 conversation was made public for the first time Monday in the upcoming book Ted Kennedy: A Life by John A. Farrell, which releases Tuesday.
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In his 2006 hearing, Alito called Roe an “important precedent” but stopped short of deeming it “settled law.” He also would not clarify the case as something that could not be revisited, noting it had been “challenged on a number of occasions.”
Alito’s views about abortion had been on the record since at least 1985. When he applied for a job at the Department of Justice, he wrote in a cover letter that his experience as a “life-long registered Republican” made him “proud” to have contributed to cases in which the government argued that “the Constitution does not protect a right to an abortion.”
But during the 2005 meeting, Kennedy also recalled Alito’s response to his citation of the DOJ memo, saying, “I was a younger person,” and “I’ve matured a lot.”
Kennedy ultimately did not vote to confirm Alito, who was confirmed to the high court on Jan. 31, 2006, by a 58-42 vote in the Senate.
Friends of and former aides to Kennedy, who died in 2009, said if he were alive today, he would have displayed a similar rage about Alito’s Roe reversal as he displayed in a 2007 speech in which he rebuked judicial nominees who “worked hard to give the impression of moderation” and “assured us that they would not bring an ideological agenda to the bench” only to “reveal themselves as ideologues” once confirmed, according to the New York Times.
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On June 24, Alito and five other Republican-appointed justices voted in Dobbs v. Jackson Women’s Health Organization to allow states to create laws severely limiting or restricting abortion access. The only exception from the bunch was Chief Justice John Roberts, who said he only would have gone as far as to uphold Mississippi’s 15-week abortion ban but called the reversal of Roe “a serious jolt to the legal system.”
The Washington Examiner contacted the Supreme Court for a response.
