A Look at the Five Conservative Judges Who Could Overrule Roe v Wade

Chief Justice John Roberts has exhibited malleability in his track record and has thus been kept out of this list.

From left to right: Samuel Alito, Brett Kavanaugh, Clarence Thomas, Amy Coney Barrett, and Neil Gorsuch.  

(Photo: Deeksha Malhotra/The Quint)

(This was first published on 4 May 2022. It has been republished from The Quint's archives over US Supreme Court overturning Roe v Wade)

"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences."

"We hold that Roe and Casey must be overruled. The Con​stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision..."

These are probably the two most important passages in the opinion delivered by Associate Justice Samuel Alito in the US Supreme Court's leaked draft with respect to its judgment on Roe v. Wade (1973).

You can read about the 1973 case in detail in this explainer.

Casey, in the aforementioned passage, refers to Planned Parenthood v Casey (1992), the details of which are beyond the scope of this article.

The reader should know, however, that in Casey, like in Roe, the Supreme Court had reiterated that states could not snatch away the right of a woman to conduct abortions before what is known as the foetal viability period – the point at which a foetus can survive outside a woman's womb and is currently agreed to be at around 23 or 24 weeks.

Nevertheless, this article deals with the five people who are very likely to vote in favour of overruling Roe. The US Supreme Court has nine justices, and a majority ruling needs only five votes.

We take a look at the five conservative justices of the US Supreme Court (henceforth, SCOTUS) who may provide those five votes. They are:

• Clarence Thomas

• Samuel Alito

• Brett Kavanaugh

• Amy Coney Barrett

• Neil Gorsuch

Before we proceed, a note about Chief Justice John Roberts. While he is considered to be a part of the conservative faction of SCOTUS, he has been willing to work with the liberal faction of the same.

He is, therefore, often regarded as the court's swing vote. Due to his malleability, we will not consider him a conservative for the purpose of this article.

Clarence Thomas

Michael O'Donnell, writing for The Atlantic, said that "Thomas is by far the most conservative justice on a very conservative Court."

An analysis by political scientists Andrew Martin and Kevin Quinn concluded the same.

Thomas assumed office in the US Supreme Court on 23 October 1991. He was nominated to the United States Court of Appeals for the District of Columbia Circuit 16 months earlier by President George HW Bush.

He is often labelled as an originalist (someone who believes that the constitution should be given the original public meaning that it would have had when it was first drafted) and as a textualist (adhering strictly to the text).

Some of his important opinions include the majority opinions in Kansas v. Marsh (where he supported the death penalty) and the religious speech case Good News Club v. Milford Central School, in which he argued that not allowing club access to a school's public forum because it was religious in nature was violative of the First Amendment.

With respect to abortion, he had once written in a dissenting opinion in 2020, "Our abortion precedents are grievously wrong and should be overruled."

"The Constitution does not constrain the States' ability to regulate or even prohibit abortion," he had added, according to The Washington Post.

Samuel Alito

The 72-year-old Samuel Alito was nominated by President George W Bush and joined the apex court in 2006.

For sixteen years prior to his SCOTUS appointment, he had served as a judge in the US Court of Appeals.

The majority opinion of the leaked draft that has stirred the latest controversy was written by Alito.

While he has described himself as a "practical originalist," he is considered to be one of the most conservative justices on the Supreme Court.

In 2013, Alito voted with the majority when an important part of the Voting Rights Act was struck down, a law that protects Black voters from discriminatory practices.

Additionally, he was in the minority in 2015 when the Supreme Court legalised same-sex marriage across the country.

In one case on abortion, in a dissenting opinion, Alito wrote that "the abortion right recognized in this court's decisions is used like a bulldozer to flatten legal rules that stand in the way."

Barrett, Kavanaugh, and Gorsuch

Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch became Supreme Court justices after 2016, that is, they were all nominated by President Donald Trump.

With respect to Gorsuch, he has not ruled on any cases that have directly concerned abortion during his tenure as a judge on the US Court of Appeals for the 10th Circuit.

There were two cases, however, that were indirectly affecting abortion in which he was involved. In one case he voted for, and in the other, he voted against abortion.

Barret, since her days of clerking for former Associate Justice Antonin Scalia, has been explicitly vocal about her personal opposition to abortion.

She has acknowledged, however, that the judiciary must resolve the issue of forcing women to remain pregnant when their choice is otherwise, describing such pregnancy as "an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines," as reported by the Associated Press.

Finally, Kavanaugh has expressed his opinion on abortion quite clearly, which is that the matter should be dealt with by the states.

"Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?" Kavanaugh has asked.

"And there will be different answers in Mississippi and New York, different answers in Alabama than California."