Supreme Court Nominations
Sen. Cornyn asks Ketanji Brown Jackson about abortion and overruling precedent
The topic of abortion and adherence to precedent was a focus when Republican Sen. John Cornyn of Texas questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson at her confirmation hearing Wednesday.
Cornyn began by asking Jackson whether she thought that the Supreme Court should overrule precedent when it concludes that a decision was wrong.
Jackson said it’s hard to answer the question in the abstract. But she said the Supreme Court has laid out factors to evaluate when to overrule precedent. Being wrong is a factor, she explained as questioning continued, but it’s not the only factor.
Jackson has discussed those factors at other points during her hearing, including whether there has been reliance on the decision, whether the precedent has become unworkable, and whether there are new facts that require revisiting the precedent.
As the questioning continued, Cornyn asked a series of questions about Roe v. Wade and its holding that abortion can’t be banned before viability. Cornyn asked Jackson whether she was aware that viability is now about 23 weeks, compared to 28 weeks when Roe was decided.
Jackson replied that she doesn’t know the answer. Cornyn then asked whether viability was an arbitrary line. Jackson said she couldn’t comment because of a pending case before the Supreme Court.
Cornyn said abortion is one of the unenumerated rights in the Constitution, and that Jackson has said so in a previous Senate questionnaire. The subject has come up at other times during the confirmation hearing. It is a sore subject among Republican senators who oppose rights to abortion and same-sex marriage.
Cornyn then switched to a question about District of Columbia v. Heller, the Supreme Court decision that found a Second Amendment right to keep handguns for protection in the home. Cornyn asked whether Heller and Roe were equivalent precedents.
“I’m not aware of any ranking or grading of precedents,” Jackson replied. “All precedents of the Supreme Court are entitled to respect on any equal basis.”