U.S. Supreme Court Justice Brett Kavanaugh spent much of his fall 2018 Senate confirmation hearing answering questions about his view on legal precedent. Some Democrats were concerned over his stance on Roe v. Wade specifically and, in that vein, wanted to know how likely he would be to support overturning cases he felt were wrongly decided, The Atlantic reported at the time.
Now, as one columnist at the Washington Examiner notes, the newest justice may have just shed some light on his position. In an article published Saturday, the Examiner‘s Nicole Russell wrote that in his concurring opinion on a recent case, Kavanaugh “takes aim at the precedent set in a 1972 case” and “sets about schooling everyone on the matter of stare decisis.“
“To stand by that which is decided”
Russell’s piece largely focuses on a recent Supreme Court case known as Ramos v. Louisiana. The cased ended with a 6–3 decision against a 1972 ruling that allowed for a criminal conviction even when a jury did not reach a unanimous decision, Russell reported.
Although the case itself has nothing to do with abortion, Kavanaugh made a reference in his concurring opinion to one legal doctrine that some analysts believe might influence his stance on the 1973 decision establishing a woman’s right to the procedure.
According to Russell, Kavanaugh broke down in his written opinion stare decisis, a Latin phrase meaning “to stand by that which is decided,” the columnist said. In the courtroom, this principle refers to a belief that the way cases have been decided in the past should be used as a guide in future rulings.
Although Kavanaugh does not outright reject this idea, he does make clear in his opinion that it is not the only factor worthy of consideration.
“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,’” he wrote, according to Russell.
Kavanaugh went on to explain the “doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents,” asserting that all current Supreme Court justices “agree that it is sometimes appropriate for the Court to overrule erroneous decisions.”
Clarifying his stance
As for Kavanaugh’s position on the Roe v. Wade decision, Sen. Susan Collins (R-ME) held out her support of the then-nominee during his 2018 hearings until the now-justice provided a direct statement on the matter.
Collins ultimately decided to vote in favor of Kavanaugh’s confirmation after he described the ruling as an important legal precedent and “settled law,” New York magazine reported at the time.
Russell, for her part, acknowledged Saturday that there is no direct evidence “that Kavanaugh is sending a subliminal signal about abortion” with his recent writings, adding that he “is making it clear that the Supreme Court affirms bad law and must later undo it.”
If Kavanaugh does hope to reverse the abortion ruling, however, the columnist noted that he “would not be alone in thinking Roe is bad law.” The late Justice Antonin Scalia “remarked the same for years,” she said.