WASHINGTON — As a Supreme Court nominee, Brett Kavanaugh described the legal principle of respecting past precedent as “critically important” and specifically cited the landmark case of Roe v. Wade that established a legal right to abortion nearly 50 years ago.
“It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis,” Kavanaugh said, employing the Latin phrase that means to “stand by things decided.”
He added that a follow-on ruling in Planned Parenthood v. Casey not only reinforced Roe but became “precedent on precedent.”
Such statements helped propel him onto the highest court in the land by securing the critical backing of Sen. Susan Collins, a moderate Republican from Maine who supports abortion rights.
Despite his reassurances to Collins, Kavanaugh joined four other conservative justices Friday in voting to overturn both Roe and Casey.
To varying degrees, the other four justices who supported overturning Roe – Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett – also talked at their confirmation hearings about the importance of precedent.
To many abortion rights supporters, their statements were nothing more than lies offered up to lawmakers and the public to win confirmation.
Appearing on NBC’s Meet The Press, Rep. Alexandria Ocasio Cortez, D-N.Y., raised the possibility of impeaching members of the court for lying under oath.
“What makes it particularly dangerous is that it sends a blaring signal to all future nominees that they can now lie to duly elected members of the United States Senate in order to secure . . . seats on the Supreme Court,” she said.
Some Republicans have noted the justices never explicitly pledged to rule one way or another in any particular case.
Reviewing the transcripts confirms that none of them promised to uphold Roe, but instead spoke in general terms about the value of letting stand established precedents.
Alito, who wrote Friday’s opinion overturning Roe, said at his hearing that the principle of stare decisis is a “fundamental part of our legal system” and “very important.”
“I agree that in every case in which there is a prior precedent, the first issue is the issue of stare decisis, and the presumption is that the court will follow its prior precedents,” Alito testified. “There needs to be a special justification for overruling a prior precedent.”
Alito referred to Roe specifically as an “important precedent” that had been on the books a long time. When such decisions are challenged and reaffirmed, they become stronger for two reasons, he said.
“First of all, the more often a decision is reaffirmed, the more people tend to rely on it, and second, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious, and when they examine a question and they reach a conclusion, I think that’s entitled to considerable respect,” he said.
Gorsuch likewise touted the benefits of following past precedent during his own hearing.
“All precedent of the U.S. Supreme Court deserves the respect of precedent, which is quite a lot,” Gorsuch said. “It is the anchor of law. It is the starting place for a judge.”
Barrett said she would “follow the law” and “obey all the rules” regarding precedent on abortion and other issues, but also pushed back on suggestions that Roe should be considered “super-precedent.”
The longest-serving justice, Thomas said during his confirmation hearing that precedent is an important link in the judicial system.
Collins now says she felt misled by Kavanaugh and Gorsuch, saying the decision is inconsistent with what they said in their testimony and in private meetings with her.
The New York Times reported on contemporaneous notes staff took during a two-hour meeting between Collins and Kavanaugh as he sought to allay her concerns about any threats to Roe’s abortion rights protections.
“Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,” Kavanaugh told her, according to those notes. “I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.”
Joe Manchin III, D-W.Va., crossed the aisle to support both Kavanaugh and Gorsuch and said after Friday’s ruling that he had trusted each one’s testimony about respecting precedent.
While Collins and Manchin expressed surprise at Friday’s ruling, Vice President Kamala Harris told CNN she never believed Kavanaugh and Gorsuch would protect Roe. Harris was representing California in the Senate at the time and serving on the Judiciary Committee that reviewed the nominations. Harris voted against both.
“I never believed them. I didn’t believe them. That’s why I voted against them,” Harris said. “It was clear to me when I was sitting in that chair as a member of the Senate Judiciary Committee, that they were ... very likely to do what they just did.”
Precedent is mentioned throughout Alito’s opinion and in the dissent written by the court’s three liberal justices. Alito wrote that the doctrine of respecting precedent is important and overturning a ruling should not be done lightly.
But he also wrote that it’s “not an inexorable command” and that precedent is weakest in regards to Constitutional interpretations because the difficulty in amending the Constitution means only the court can fix its own mistakes in those cases.
“Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong,” Alito wrote. “When that happens, stare decisis is not a straitjacket.”
As Alito noted in the opinion, the court has overturned its precedents before.
In their dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor referred to the majority’s “cavalier approach” toward overturning precedent, which they wrote flies in the face of judicial modesty and humility.
They wrote the court was reversing its position for one reason only: because the composition of the court has changed.
The majority included a list of examples of rulings overturned by future courts.
The dissenters wrote in each instance, the facts or legal doctrine had changed in ways that undermined the previous decision, or the earlier decision was less than a decade old and had not taken root enough for people to rely on it.
“None of those factors apply here: Nothing — and in particular, no significant legal or factual change — supports overturning a half-century of settled law giving women control over their reproductive lives,” the dissenters wrote.
