Senator Ted Kennedy (D-MA) boards an elevator after walking off the floor of the U.S. Senate after a roll call vote to achieve cloture on the nomination of Judge Samuel Alito to the US Supreme Court passed 72 to 25 January 30, 2006 in Washington, DC.
Chip Somodevilla | Getty Images
Supreme Court Justice Samuel Alito, who wrote the majority opinion this summer overturning the abortion rights case Roe v. Wade, assured the late Sen. Ted Kennedy in 2005 that he considered a key legal basis for Roe to be “settled,” a new report reveals.
“I am a believer in precedents,” the conservative Alito told Kennedy, the liberal Massachusetts Democratic senator wrote in his diary in November 2005, The New York Times reported.
“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 said, according to the diary citation.
“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 said to Kennedy, a staunch defender of abortion rights who died in 2009.
The comment was made as Alito was seeking Senate confirmation to the court during a visit to Kennedy’s office, wrote John Farrell in the Times report. Farrell’s new book, “Ted Kennedy: A Life,” which features details of the diary entries, is being published Tuesday.
The 1973 decision in Roe established for the first time that there was a federal constitutional right to abortion.
Roe was based on a prior high court decision, Griswold v. Connecticut, which in 1965 found that there was a constitutional right to marital privacy, in a case related to married couples having been barred from using birth control.
Conservatives for decades attacked Roe as flawed, in part with the argument that the Constitution does not explicitly state individuals have a right to privacy, much less one to abortion.
Associate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.
Erin Schaff | Pool | Reuters
During his meeting with Alito, Kennedy was skeptical of the judge, who as a lawyer in the Justice Department during the Reagan administration had written a memo in 1985 that noted he opposed Roe.
“Judge Alito assured Mr. Kennedy that he should not put much stock in the memo,” the Times reported.
“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 also said that his views on Roe being erroneously decided were “personal,” according to Kennedy’s diary.
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“Those are personal,” Alito said, Kennedy wrote in the diary. “But I’ve got constitutional responsibilities and those are going to be the determining views.”
Despite that assurance, Kennedy voted against confirming Alito to the Supreme Court.
Alito didn’t return a request submitted to the Supreme Court’s press office seeking comment on the Times article.
In July, Alito wrote the majority decision in the case Dobbs v. Jackson Women’s Health Organization, which overturned both Roe and another landmark abortion rights case, Planned Parenthood v. Casey, which was decided in 1992.
“Roe was egregiously wrong from the start,” Alito wrote.
“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,” he wrote, noting that those cases “must be overruled.”
“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment,” he wrote.
It was that amendment, the 14th, which Alito reportedly had told Kennedy almost 17 years earlier established a right to privacy.
But Alito’s opinion in Dobbs said that abortion is a “fundamentally different” right than ones such as “intimate sexual relations, contraception, and marriage,” because “it destroys … ‘fetal life.'”
The Dobbs ruling meant that individual states would again have the authority to strictly limit or even ban abortion, or to allow it with loose restrictions.
Abortion has been largely banned in at least 13 states since Dobbs was issued.
In a concurring opinion with Dobbs, Alito’s fellow conservative, Justice Clarence Thomas, wrote that other landmark rulings by the court that established gay rights and the right to contraception should be reconsidered now that Roe had been tossed out.
Thomas said in his opinion that those rulings “were demonstrably erroneous decisions.”
The cases he mentioned are Griswold v. Connecticut; Lawrence v. Texas, which in 2003 established the right to engage in private sexual acts; and the 2015 ruling in Obergefell v. Hodges, which said there is a right to same-sex marriage.
Thomas noted that all those decisions are based on interpretations of the due process clause of the 14th Amendment.
He wrote that the constitutional clause guarantees only “process” for depriving a person of life, liberty or property cannot be used “to define the substance of those rights.”