Can a Supreme Court Justice Commit Perjury?

Hi, I’m Danny Karon, your Lovable Lawyer, here with your quick shot of legal wellness.

In the aftermath of Dobbs v. Jackson Women’s Health Organization, there’s been a lot of talk about what Justice Alito—the person who wrote the majority opinion—wrote about abortion as compared to what he said about abortion at his confirmation hearing.

Namely, people are asking everywhere—including people in Congress—did Justice Alito perjure himself during his senate confirmation hearing?

First, let’s talk about what perjury is. Perjury is the voluntary violation of an oath by swearing to what’s untrue or by not doing what you promised to do while you were under oath.

So, where’s the issue here? We know what Justice Alito wrote in Dobbs—obviously, he overruled the constitutional right to an abortion. But what did he say at his confirmation hearing where he testified under oath?

At his 2006 hearing, he declined to say that Roe was “settled law.” Instead, he called it an “important precedent” that is “protected” yet he refused to say it was something that couldn’t be “re-examined.”

Of course, Justice Alito wasn’t the only one questioned about Roe. And he wasn’t alone in the Dobbs majority opinion.

Justice Clarence Thomas, in his 1991 senate hearing, he declined to take a position on Roe, saying he had “no reason or agenda to prejudge the issue or to be predisposed to ruling one way or the other on abortion.”

Let’s keep going. Justice Neil Gorsuch. In 2017, he said that “a good judge will consider Roe as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.” But he didn’t say he wouldn’t overturn it.

Justice Brett Kavanaugh. In 2018, he said he “doesn’t get to pick and choose which Supreme Court precedents he gets to follow—he “follow[s] them all,” adding that Roe is an “important precedent” that’s been “reaffirmed many times.” He sounded the closest so far to saying he wouldn’t overrule it, but he wasn’t quite there either.

And then finally, in 2020, Justice Amy Coney Barrett. She said that she didn’t believe Roe was a “super precedent” that “no one questions anymore,” but “that didn’t mean Roe should be overruled.” She even added that she would follow stare decisis, which, you might remember from my earlier video, means the practice of following earlier decisions. Now, this one’s maybe closer than Kavanaugh. But like Kavanaugh, again, it’s not quite there.

Now, let’s remember, while the Court’s practice is to follow earlier decisions—stare decisis—the Court can overrule itself. In fact, the Court has done so about 232 times since 1810, and it requires a careful legal test.

So even if certain Justices had pledged not to overturn Roe, that doesn’t mean they couldn’t change their minds and do it anyway.

Now, if Congress wants to press this issue, Supreme Court justices can be impeached and removed from office under the same process as presidential impeachments—with the House first considering impeachment and then the Senate holding a trial.

In fact, only one justice, Samuel Chase, has ever been impeached. The House impeached him in 1804, but the Senate acquitted him.

So, will anything similar happen here? As much as people like making this hot-button issue, I’m sure it won’t. People who don’t like Dobbs’ decision will just have to focus elsewhere.

If you’d like to learn more about legal wellness, please subscribe to my YouTube channel or visit me at yourlovablelawyer.com. Until next time, I’m Danny Karon, your Lovable Lawyer.