The statement by Speaker Pelosi and Senator Schumer accusing several of the conservative justices who are reportedly prepared to overturn Roe v. Wade is one of the most scandalous libels ever to issue from Capitol Hill. It is a nasty, hysterical, ad hominem attack on sitting justices in the midst of their deliberations, designed to derail the normal work of the court. Then again, too, we have always been given to understatement.

Said Mrs. Pelosi and Mr. Schumer: “Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century.”

Neither Mrs. Pelosi nor Mr. Schumer had the backbone to identify by name which justices they were accusing of lying to the Senate. They seem to be suggesting that several justices nominated by Republicans somehow misled the solons on what they would do about Roe v. Wade. Yet we find scant evidence that they misled anyone. On the contrary, there is much evidence that they kept their options open, as they should have.

Justice Samuel Alito, who wrote the draft opinion leaked to Politico, was nominated to the high bench by President George W. Bush. He had ruled for restricting abortions a number of times when he was on a lower court but, NPR reports, during his confirmation hearing he “declined to say much directly about Roe. He called it an ‘important precedent of the Supreme Court’ but stopped short of calling it settled law.”

NPR quotes Justice Alito as telling his confirmation hearing that “It would be wrong for me to say to anybody who might be bringing any case before my court, ‘If you bring your case before my court, I’m not even going to listen to you. I’ve made up my mind on this issue. I’m not going to read your brief. I’m not going to listen to your argument. I’m not going to discuss the issue with my colleagues. Go away — I’ve made up my mind.’” 

Justice Clarence Thomas, according to NPR’s compilation of statements on this head, “refused to state an opinion on abortion or whether Roe had been properly decided.” He didn’t want to compromise what NPR called his “future ability to rule on cases related to Roe,” he said. “I can say on that issue and on those cases I have no agenda. I have an open mind, and I can function strongly as a judge.”

Justice Neil Gorsuch wouldn’t take a position on Roe during his confirmation hearing. He acknowledged that Roe was precedent. He was, though, blunt as could be in refusing to get drawn. He went so far as to say that he’d have stood up and walked out the door had President Trump asked him to overturn Roe. We thought it was vainglorious of Judge Gorsuch to say that, but where is the lie that Mrs. Pelosi and Mr. Schumer are decrying?

In truth, Justice Gorsuch never got near a lie in his testimony. Nor did Justice Brett Kavanaugh. He was, the New York Times reports, “repeatedly” asked by both Democrats and Republicans to say how he  might rule. Yet, the Times quotes him as saying in his opening remarks, “Judges do not make decisions to reach a preferred result. Judges make decisions because the law and the Constitution as we see them compel the results.” 

The Times notes that “much was made” of “a private meeting” twixt Justice Kavanaugh and Senator Collins, whom the Times quotes as saying that the nominee “had told her he considered Roe to be ‘settled law.’” Yet he also said that, as the Times put it, it can be appropriate for the court to revisit prior decisions. “I listen to all arguments,” the Times quotes Justice Kavanaugh as saying. “You have an open mind.”

So where is all this lying? The Times reports that Justice Amy Coney Barrett, too, “declined to say outright whether she believed Roe had been correctly decided.” Justice Barrett parried a question by Senator Klobuchar about whether the judge sees Roe as a “super-precedent” by defining a super-precedent as being “cases that are so well settled that no political actors and no people seriously push for their overruling.”

“And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category,” she said. “Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn’t mean that Roe should be overruled. It just means that it doesn’t fall in the small handful of cases like Marbury v. Madison and Brown v. Board that no one questions anymore,” she added. To which one can but say: “Oooomph.”

The closest thing that any of these judges got to boxing themselves in was to characterize Roe as “settled law.” That, though, is no promise, as the Times quoted Mr. Schumer as acknowledging in 2018, when he said that “Everything the Supreme Court decides is settled law until it unsettles it. Saying a case is settled law is not the same thing as saying a case was correctly decided.” In other words, his suggestion that the GOP nominees lied is, well, itself a lie.