Amid all the painful memories and dramatic confrontations that enlivened the confirmation hearings on Brett Kavanaugh’s Supreme Court nomination, there wasn’t much question about the single most important underlying issue. It was whether the putative justice would — as his fans hoped and his enemies feared — become the crucial fifth voice who would enable a major rollback or complete repudiation of the constitutional right to an abortion. Since Kavanaugh was able to dodge questions about particular hypothetical cases as risking a prejudgment, a lot of the skirmishing over how he’d deal with the 40-plus-years of an established right to choose came down to questions about the weight he accorded to stare decisis, the principle by which legal precedents — and particularly those laid out by SCOTUS itself — are binding on lower and later courts.
Susan Collins, the pro-choice senator who ultimately clinched Kavanaugh’s confirmation, placed great stock in his assurances that Roe v. Wade was “settled law” and an important precedent. (She and others, however, didn’t seem to distinguish sufficiently between the judge’s lower-court rulings that were absolutely bound by SCOTUS precedents and the relative freedom of the court itself to “correct” its own constitutional interpretations). She even compared this survivor of an unprecedented Federalist Society vetting process to famous Republican-appointed SCOTUS apostates on abortion rights — the very “betrayals” the vetting process was intended to make impossible.
In any event, Kavanaugh is now on the Supreme Court, and a decision on the first big abortion-rights case (June Medical Services v. Russo) is expected to come down this term. Because the Louisiana law in question directly contradicts the last landmark SCOTUS decision on abortion, Whole Women’s Health v. Hellerstedt (with Kavanaugh’s predecessor, Anthony Kennedy, serving as the swing pro-choice vote), and was teed up by anti-abortion activists to serve as a starting point for the reversal of the broader abortion-rights cases (Roe and also Planned Parenthood v. Casey), the question of Kavanaugh’s respect for precedent will soon be put to the test.
That is why his concurring opinion in this week’s very peculiar SCOTUS decision, Ramos v. Louisiana, is tantalizing. The whole decision is fascinating, showing a fractured Court dealing with a precedent (allowing for non-unanimous verdicts in state criminal trials) nobody would defend on its merits. It was, as Slate’s Mark Joseph Stern observed, “a mess of epic proportions”:
It split 3–1–1–1–3 on thorny disputes over precedent, constitutional interpretation, the Bill of Rights’ protections for noncitizens, and the contemporary relevance of a law’s racist roots. The justices used Ramos to shadowbox over long-running debates, including abortion, giving every court watcher some tea leaves to obsess over. In doing so, they proved once again that the Supreme Court has never been more divided — and that these simmering debates will soon rupture into full public view.
Though all the five opinions accompanying the decision were interesting, Kavanaugh’s was arguably the most significant, as the New York Times’ Linda Greenhouse suggested:
Justice Kavanaugh’s 18-page concurring opinion, which no other justice joined, included a list of 30 of “the court’s most notable and consequential decisions” that overturned earlier rulings — a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v. Board of Education to Citizens United.
“Indeed,” he observed, “in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.” Hey, overturning precedent is so commonplace these days as to be virtually painless. Look, everyone does it. I can, too.
But after this cheerful assault on the sanctity of constitutional precedents, which should have terrified Susan Collins if she read it, Kavanaugh went on to present a three-part test for his willingness to discard the handiwork of his predecessors. The precedent in question had to be (1) “grievously and egregiously wrong,” (2) causing “significant jurisprudential or real-world consequences,” and (3) not something that created “reliance interests” that an overruling would “unduly upset.”
Kavanaugh seems to be creating a framework for how he will approach cases where the right to an abortion is called into question — a framework that is consistent with different outcomes. I cannot read his mind, and don’t know what sort of implicit strategy the conservative majority on the Court has for dismantling this and other progressive precedents. But it’s pretty safe to say that any Federalist Society member in good standing would consider the entire chain of precedents dating back to Roe as “grievously and egregiously wrong,” and that an observant Roman Catholic like Kavanaugh would probably believe legalized abortion caused “significant real-world consequences.” “Reliance interests” is a flexible concept, but it might enable someone like Kavanaugh to support a gradual rather than abrupt reversal of the right to choose to give women a chance to prepare for a return to 1972, the year before Roe was decided.
The fact that the rest of the Court also wrestled with how to frame their views on stare decisis in Ramos is an indication that all nine Justices are preparing for a big throwdown. Greenhouse calls it “a Supreme Court in crisis.” While it may be overshadowed by the coronavirus or the 2020 elections, the Court’s crisis may soon be our own.