Since Justice Brett Kavanaugh survived the vicious attempt to derail his Supreme Court nomination with a wholly unproven sexual assault allegation, proponents and critics alike have wondered: When will he speak up about Roe v. Wade and what will he say? Well, we finally got some insight into the answer this past week.
In a concurring opinion just released in a case called Ramos v. Louisiana, Kavanaugh takes aim at the precedent set in a 1972 case, which allowed for convictions with nonunanimous juries in criminal trials. The justice argues that it is time to overrule the legal precedent and sets about schooling everyone on the matter of stare decisis, Latin for “to stand by the things decided” or legal precedent.
First, Kavanaugh took great care to explain that it’s important the Supreme Court abides by precedent when they can, otherwise the decisions from every new case would bend to the will of each new judge. He writes, “This Court has repeatedly explained that stare decisis ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”
However, after explaining this, Kavanaugh then unleashes the razor-sharp analytical prowess he was known for on the D.C. Circuit Court of Appeals and completely dismantles the idea that precedent alone ensures all laws remain in stone for life.
“The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents,” he writes. “All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions.”
Kavanaugh’s first example? Overturning parts of Roe v. Wade in the case Casey v. Planned Parenthood. He also spends an entire page passive-aggressively, but most brilliantly, citing all the times “some of the Court’s most notable and consequential decisions have entailed overruling precedent,” listing some 30 cases at least.
It’s not certain that Kavanaugh is sending a subliminal signal about abortion, but he is indeed demonstrating his knowledge of law, precedent, when it works, and when it doesn’t. The justice is making it clear that sometimes the Supreme Court affirms bad law and must later undo it. (He would not be alone in thinking Roe is bad law, Justice Scalia remarked the same for years, God rest his soul.)
Another point worth making: Many Supreme Court opinions follow an ideological split, 5-4, the more strict textualists to one side, and the rest to the other side.
Interesting vote here: Gorsuch writes majority opinion joined by Ginsburg, Sotomayor, Breyer, Kavanaugh; Thomas concurs; Alito writes dissent joined by Roberts and Kagan.https://t.co/TVWJg23LPS
— Christopher J. Scalia (@cjscalia) April 20, 2020
But here, the vote was split entirely differently. Justice Neil Gorsuch wrote the majority opinion, and Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Kavanaugh joined it. Clarence Thomas concurred with them.
Yet, Justice Samuel Alito wrote the dissent and was joined by Chief Justice John Roberts and Obama-appointed Justice Elena Kagan, of all people. This shows not only that some justices, even the ones who claim not to be originalists, think precedent can be overturned, but also that the Democrats were misguided when they claimed only originalist judges do.
Of course, this particular ruling changes nothing on its face about abortion laws. But it does demonstrate how it could be possible for the current Supreme Court to dismantle precedent and overturn some rulings that are now perceived as bad or erroneous. Roe v. Wade could come under fire down the line.
