Kavanaugh, Alito cite overturned precedents, setting stage for possible Roe reversal

The U.S. Supreme Court heard oral arguments this week in a landmark abortion-rights case that could result in prior precedents being overturned.

According to NBC News, Justice Brett Kavanaugh cited during the hearings two major LGBTQ rights cases as examples of prior Supreme Court decisions to overturn earlier rulings.

“There’s a string of them”

The nation’s highest court is considering the case of Dobbs v. Jackson Women’s Health, which concerns a legal challenge of Mississippi’s law banning most abortions after 15 weeks of pregnancy.

In making his point that the Roe v. Wade decision of 1973 could be overturned, Kavanaugh cited 2003’s Lawrence v. Texas and 2015’s Obergefell v. Hodges decisions. While some LGBTQ rights activists questioned the conservative justice’s sincerity in using these decisions in his remarks, others agreed with his underlying conclusion.

The legal principle of stare decisis, which refers to a court’s respect for prior rulings as precedent, has been a central focus of the current case.

As Kavanaugh argued, sometimes those previous decisions are wrong and should be overturned.

“If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” he said.

“Return to the position of neutrality”

The justice proceeded to cite the Lawrence case, which struck down state laws against same-sex relations, and Obergefell, which recognized same-sex marriages as constitutional, as evidence of his point.

“So the question on stare decisis is why…if we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?” he asked.

Of course, there are other prominent examples of rulings that were subsequently deemed incorrect and overturned by the Supreme Court. Justice Samuel Alito addressed this notion in a question directed toward the U.S. Solicitor General Elizabeth Prelogar, who was arguing in support of the Mississippi abortion clinic.

“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” he asked, prompting Prelogar to remark that some “materially new” argument or circumstance must be introduced to overturn such a precedent.

Alito pointed out the absurdity of that position by referencing the 1896 Plessy v. Ferguson decision upholding that “separate but equal” racial segregation laws, which was not overturned for nearly 60 years. While Prelogar acknowledged that the Plessy ruling was wrong, she could not bring herself to admit that it should have been overturned sooner.

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