Brett Kavanaugh, who touted importance of precedent during confirmation fight, downplays it as he considers reversing Roe

By CNN

Published December 1, 2021 5:58 PM

By Tierney Sneed

When Justice Brett Kavanaugh was facing tough questions during his 2018 confirmation battle about his views on the Supreme Court’s abortion rulings. he returned time and time again to the importance of precedent and their “precedent on precedent.”

Speaking more broadly, Kavanaugh at the time described the circumstances that the justices overturn precedent as “rare” and said that a court majority’s disagreement with a prior ruling was, by itself, not enough to overturn it.

But Kavanaugh’s tone on when the court departs from “stare decisis,” the concept of standing by its previous decisions, was a bit different on Wednesday when the court debated the future of abortion rights and its previous rulings.

As he touted the “string” of “important” and “consequential” cases where the court had previously overturned precedent, Kavanaugh said Wednesday that “history tells a somewhat different story, I think, than is sometimes assumed.”

His questions and comments Wednesday suggested he is inclined to uphold Mississippi’s 15-week ban on abortion. Mississippi wants to reverse Roe v. Wade, the 1973 Supreme Court decision enshrining a constitutional right to an abortion, leaving the question of whether abortion can be banned to the states.

The statements Kavanaugh made about Roe and precedent in 2018 were key to him securing the support of Sen. Susan Collins, the Maine Republican who favors abortion rights and who provided the pivotal vote for confirming Kavanaugh to the high court.

She claimed at the time that Kavanaugh had privately told her that Roe v. Wade was “settled law,” while pointing to his public remarks about precedent to explain why she was supporting his confirmation.

“In his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood vs. Casey, describing it as a precedent,” Collins said in the floor speech announcing her vote, citing the 1992 decision. “When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said ‘no.'”

Collins continues to support abortion rights, telling CNN on Wednesday she is “for Roe.”

She declined to comment on Kavanaugh’s remarks during the Mississippi case hearing, telling CNN she had not heard the arguments but was planning on listening to them Wednesday night.

On Thursday when asked by CNN whether she still believed that Kavanaugh viewed Roe as settled law, Collins said, “I think we all need to wait and see what the final decision is.”

Court rulings on abortion that are ‘precedent on precedent’

Kavanaugh was nominated to the Supreme Court by then-President Donald Trump, who promised during the 2016 campaign to pick justices who would “automatically” overturn Roe v. Wade. At the time Kavanaugh was selected to replace the retiring Justice Anthony Kennedy, Republicans held 51 seats in the Senate — two of them belonging to senators who describe themselves as favoring abortion rights, making abortion a focal point of his confirmation process.

Kavanaugh declined to say what his views were of the Roe decision on the merits but said it was “entitled to respect under the law of precedent.”

“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992,” Kavanaugh said in his confirmation hearing, adding that the Casey decision analyzed the “stare decisis factors” when explaining why the precedent was not overturned.

“It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it,” Kavanaugh said. “That makes Casey a precedent on precedent.”

In addition his comments specific to Roe, Kavanaugh made several general remarks about court precedent that emphasized a need to respect it and how it was “important for stability and predictability.”

The Supreme Court can overturn its prior precedents, Kavanaugh said during his hearing, “but there is a series of conditions, important conditions, that, if faithfully applied, make it rare.”

“And the system of precedence rooted in the Constitution, it is not a matter of policy to be discarded at whim,” he said. He added that the “age of a precedent, as, I think, the Supreme Court itself has articulated many times, does ordinarily add to the force of the precedent and make it an even rarer circumstance where the court would disturb it.”

Notably, when a Republican senator asked Kavanaugh a hypothetical question that abstractly described abortion foes’ arguments for overturning Roe, Kavanaugh returned to the idea that the court sets “forth a series of conditions that you look for before you consider what you would overrule.”

If the court thought a prior decision was “grievously wrong,” it would then go “on to the next steps of the stare decisis inquiry,” he said, which includes other factors the court takes into account.

Not sticking ‘with those precedents’

Kavanaugh brought up the stare decisis principle on Wednesday, in a question that implied that precedents are overturned quite frequently and often in some of the most “important” and “consequential” cases.

“As I’ve looked at it, and the history of how the court applied stare decisis, and when you really dig into it, history tells somewhat a different story, I think, than what is sometimes assumed,” he said. “If you think about some of the most important cases, some of the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent.”

He cited cases concerning racial segregation, voting rights, business regulations, criminal justice rights, and the rights of same-sex couples.

“That’s a list, and I can go on — and those are some of the most consequential and important in the court’s history — the court overruled precedent,” Kavanaugh said, noting that in those cases the court had been presented with arguments that it should adhere to the prior precedent.

“If the court had done that in those cases, you know, the country would be a much different place.” Kavanaugh said. He asked the attorney for the abortion providers that if the court has concluded now that Roe was decided wrongly, “why then doesn’t the history of the court’s practice with regards to those cases tell us that the right answer is actually a return to a position of neutrality — and not stick with those precedents in the same way that all those other cases didn’t?”

The court’s liberal appointees pushed back at how Kavanaugh framed those cases, with Justice Sonia Sotomayor saying that most of those cases involved the court “recognizing and overturning state control over issues that we said belong to individuals.”

Kavanaugh’s comments also drew the condemnation of Lambda Legal, an LGBTQ rights organizations that was behind one of the cases that led to the same-sex marriage ruling Kavanugh cited. “NOT IN OUR NAME,” the group said in a statement. ” LGBTQ people need abortions. Just as important, those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite.”

The idea that the Constitution is “neutral” on abortion is what the procedure’s foes are arguing in the case, and it’s an idea Kavanaugh repeated in questions that he said where about summing up Mississippi’s arguments.

“They say the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral on the question and that they are saying here,” Kavanaugh said Wednesday, asking the providers’ lawyers to respond to the argument.

When questioning the Justice Department, which is arguing against overturning Roe, Kavanaugh asked, “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”

A decision in Mississippi case, Dobbs v. Jackson Women’s Health, is expected by next summer.

This story has been updated with comment from Sen. Collins.

Ali Zaslav and Morgan Rimmer contributed to this report.

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