Brett Kavanaugh, Abortion, and 'Settled Law'

Don't assume Roe v. Wade will be safe with Justice Kavanaugh.

After meeting with Supreme Court nominee Brett Kavanaugh, Sen. Susan Collins emerged to announce that he regards the Roe v. Wade decision as "settled law." This comes as an apparent relief to the Maine Republican, who favors abortion rights. But those who hope the Court will uphold Roe would be rash to assume it would be safe with Justice Kavanaugh.

"Settled law" sounds solid, but like ice, it's a substance that can quickly turn to vapor. Roe is "settled" in the sense that it has survived for 45 years and the Court has passed up opportunities to ditch it. But being settled doesn't mean its survival is assured, under the Court of 2019 or 2029.

The pertinent question for the nominee is whether Roe is entitled to be treated as not merely a precedent, which the Court should not lightly reverse, but a "super-precedent," which the Court should not reverse, period.

All courts defer to previous decisions, adhering to them unless there is good reason not to—a concept known as stare decisis. In this vein, the justices have repeatedly preserved the core elements of Roe. In 1992, the Court said that overruling Roe would do "profound and unnecessary damage to the court's legitimacy, and to the nation's commitment to the rule of law."

In a 2000 case, Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit invoked that 1992 decision, which allowed some restrictions but affirmed "a woman's right to terminate her pregnancy in its early stages."

Luttig interpreted it "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy"—a position, he noted, that the Supreme Court later "not merely confirmed, but reinforced." The conclusion was especially noteworthy coming from a highly respected conservative who was considered for the Supreme Court by President George W. Bush.

During John Roberts' 2005 confirmation hearings, Harvard law professor Charles Fried, who was solicitor general in the Reagan administration, testified that even though Roe was "wrongly decided," he thought it had become a "super-precedent." It underlay so many other important decisions that upending it would be "an enormous disruption."

Roberts ducked the super-precedent question. Kavanaugh is likely to follow suit. Whether he would vote to discard or hollow out the right to abortion is anyone's guess.

Most judges and scholars agree that some Supreme Court decisions are so fundamental to modern law and life that they are immune from reconsideration—such as Brown v. Board of Education, which banned segregated public schools, and the 1871 ruling that paper money is not unconstitutional. Maybe these decisions did not strictly follow the text of the Constitution or the intent of the Framers, but scrapping them would cause too much trouble to be justified.

Not everyone thinks Roe belongs in that company. University of Chicago law professor David Strauss, who defends the right to abortion it upheld, wrote in 2010 that the decision should not be treated as sacrosanct.

"Protracted opposition, even if it does not prevail, counts for something," he said, arguing that Roe "cannot be put on the same level as decisions…that were initially controversial but have now gained near-universal acceptance." Now, though, he tells me, "Appointees of presidents who made a point of attacking Roe have voted to uphold it. That kind of resilience ought to give Roe a much greater claim not to be overruled."

Georgetown law professor Randy Barnett, a prominent originalist, has argued that the only decisions qualifying as super-precedents are those affirming policies that no one would challenge anyway—such as the ban on Jim Crow.

That does not apply to Roe. A test of the honesty of any approach to constitutional interpretation is whether it sometimes yields outcomes that you don't like. The late Antonin Scalia said, "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag." But as a justice, he voted to strike down a law against flag desecration.

Roe, in my opinion, was a sensible decision enshrining a crucial right. But for its defenders to say it is beyond re-examination by the Court would be putting preference over principle.

Liberals might like to grant Roe protected status. They would bridle, though, at putting equally durable rulings that they disdain—say the 1976 decision striking down limits on campaign spending—in the same category.

If Kavanaugh joins the Court, he should feel free to ask whether the constitutional right to abortion truly deserves to be preserved. His answer should be: Yes.