The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During last weeks' confirmation hearings for Supreme Court nominee Brett Kavanaugh, much time and energy was devoted to trying to determine whether the nominee thinks that Roe v. Wade is "settled law," as he described it in the hearings. Key swing-vote GOP Senator Susan Collins indicated she was reassured because Kavanaugh said that Roe is indeed "settled law," while many Democrats were skeptical that he really believes that, pointing to a leaked 2003 e-mail in which Kavanaugh wrote that "I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so."
The truth is that "settled law" is just a euphemism that jurists and legal scholars use to refer to Supreme Court precedent that is indeed binding—but only until a majority of the justices decide that it should be overruled. In the 2003 e-mail, Kavanaugh was largely right to say that the Supreme Court "can always overrule its precedent." And that's a good thing. The Supreme Court needs to have the power to overturn flawed constitutional precedent, as this is usually the only way to correct wrong constitutional decisions, short of using the extraordinarily difficult amendment process.
If precedent were sacrosanct, the Supreme Court could not have reversed or superseded any of its most notorious past decisions. Just this summer, in the travel ban case, the Court repudiated Korematsu v. United States, the notorious 1944 decision that upheld the World War II-era racially-based internment of over 100,000 Japanese-Americans. Hardly anyone objected that it was somehow inappropriate for the justices to junk a 74-year-old precedent. Indeed, the main objections voiced (including by me) were that the Court implicitly retained much of the overdeferential approach to executive power it had used in Korematsu, thereby making a terrible mistake in the travel ban case itself.
Few people, particularly on the left, pine for the return of Bowers v. Hardwick, the 1986 case in which a narrow majority upheld the constitutionality of anti-sodomy laws. The Court eventually overruled Bowers in Lawrence v. Texas (2003), which has since become something of an iconic decision.
Highly controversial Supreme Court precedents like Bowers, Korematsu, and—yes—Roe, are never truly "settled" unless and until a broad consensus develops supporting them. In some cases, a precedent might become settled despite continuing widespread doubts about its correctness, if getting rid of it would inflict massive costs by upsetting expectations or generate an overwhelming political backlash. But even that won't necessarily prevent reversal if those who seek to overrule the decision believe that its perpetuation inflicts even greater costs. Many, if not most, pro-lifers believe exactly that when it comes to Roe, especially those who believe that abortion is comparable to murder.
Today, pretty much every law professor and legal commentator can name Supreme Court decisions they would like to see overruled. High on my list are cases as Kelo v. City of New London (and also Berman v. Parker, the earlier precedent on which it is based), Gonzales v. Raich, and—most recently—the travel ban case. I would be happy to see all of these eliminated at the first available opportunity. There are other precedents I would like to see cut back on more gradually, out of consideration for reliance interests and political constraints.
If you follow constitutional law at all closely, you probably have a list of your own, that may well differ from mine. It would be surprising if Kavanaugh does not have one, as well. Indeed, in 2016 he said he would like to "put the final nail" into Morrison v. Olson, the controversial 1988 ruling that upheld the independent counsel act (though it should be emphasized that overruling Morrison would not render the Mueller investigation unconstitutional, because the latter is entirely consistent with the Justice Antonin Scalia's dissent in the Morrison case, which Kavanaugh has praised).
In some cases, it might make sense for the Court to defer to potentially misguided precedent if the justices are highly uncertain about whether it is indeed an error, or if there is a very broad consensus about its correctness. But that is rarely true of controversial decisions that have generated a strong movement seeking their reversal.
In exchanges with Democratic senators, Kavanaugh tried hard to reveal as little as possible about what, if any, precedents he might want to reverse. But, as Damon Root of Reason points out, he did make a revealing statement about precedent in response to a question from GOP Sen. Ben Sasse:
Sasse approached the question of overturning precedent from a different angle. "It isn't the case that every decision the Supreme Court has ever made is right and is now a part of the permanent rulebook. You sometimes have to throw them out," he said. "So, sixth-grade level, help us understand how from 1896 to 1954…in those 58 years the Court was wrong for that whole time." Sasse was referring to Plessy v. Ferguson, the 1896 ruling that enshrined the doctrine of "separate but equal," and to Brown v. Board of Education, the 1954 decision that overruled Plessy. "The way we think about precedent," Sasse observed, "we might have our sixth graders thinking we should always take every received decision as right. So how do you reconcile the two?"
"One of the genius moves of Thurgood Marshall," Kavanaugh replied, "among many genius moves, was to start litigating case by case." Marshall was the NAACP lawyer (and future Supreme Court justice) who spearheaded the litigation and ultimately argued and won Brown before the Supreme Court. "He knew Plessy was wrong the day it was decided," Kavanaugh continued. "But he also knew as a matter of litigation strategy the way to bring about this change was to try to create a body of law that undermined the foundations of Plessy. And he started litigating cases and showing, case by case, that separate was not really equal." That, Kavanaugh concluded, was how Marshall "was able to show that the precedent, even with principles of stare decisis in place, should be overturned."
The Supreme Court has explicitly stated that a precedent can be overruled if its logic been weakened by intervening decisions, and such gradual erosion is often how a once-important precedent loses its force, whether or not it is ever formally overruled. Even in Brown, the Supreme Court did not completely overrule Plessy, and certainly did not conclude that the latter was wrong the day it was decided. It merely held that school segregation was unconstitutional because experience and modern social science had shown that segregated schools could never be truly equal, thereby leaving open the possibility that segregation might still be permissible in other contexts, and that Plessy might have been justified back in 1896. Nevertheless, Brown ultimately led to the effective gutting of Plessy, including in decisions striking down segregation laws outside the context of education.
The Supreme Court can potentially use a similar approach to weaken other precedents the justices are reluctant to overrule completely. Perhaps a conservative majority will do just that with Roe. Whether that is justified in a particular case depends on the merits of the ruling in question, and also how much harm might be inflicted by upsetting "reliance interests" that have arisen from it. Regardless, the issue cannot be decided simply by appealing to the authority of "settled law."