MENU

Reason.com

Free Minds & Free Markets

Brett Kavanaugh and Ben Sasse Talk About Overturning Supreme Court Precedent

A revealing exchange between the SCOTUS nominee and the Republican senator.

C-SPANC-SPANWith one simple question, Sen. Ben Sasse (R-Neb.) succeeded yesterday in doing what Senate Judiciary Committee Democrats spent two days trying and failing to do: Namely, Sasse got Supreme Court nominee Brett Kavanaugh to speak favorably about the idea of overturning a Supreme Court precedent.

The Democrats, of course, had been pressing Kavanaugh about Roe v. Wade, the 1973 precedent that recognized a woman's constitutional right to have an abortion. Kavanaugh had a stock answer at the ready. Roe is a precedent of the Supreme Court, Kavanaugh repeated again and again, in various formulations, and is entitled to respect under principles of stare decisis. The notion of overturning that precedent, or any other, was not mentioned.

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."

This exchange illuminates a crucial point that tends to get ignored amidst the spectacle of a confirmation fight. That point is this: Nobody truly believes that Supreme Court precedent is 100 percent sacrosanct. Nobody on the left thinks this, and nobody on the right thinks this. Indeed, everybody involved in the legal debates over the meaning and application of the Constitution can probably name at least one SCOTUS precedent that they would like to see destroyed. Many conservatives would of course like to see Roe reversed. Many progressives would like to see Citizens United go down. For my part, I'd put The Slaughter-House Cases on the chopping block.

To be sure, stare decisis is a venerable doctrine in American law. But as Sen. Sasse's questioning reminds us, it is not the only venerable doctrine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Tom Bombadil||

    There is no such thing as "settled law".

  • JesseAz||

    But is there settled feelz?

  • Dillinger||

    Filburn got screwed.

  • PeteRR||

    Hear, hear!

  • perlchpr||

    That's on my list. Miller is too.

  • Tamfang||

    The only thing wrong with Miller itself (imho) is that it's so badly written. The Ninth Circuit reads it to say something that it doesn't.

  • Just Say'n||

    Overturning Supreme Court precedent is awful. We should get rid of the Heller decision, also I guess we love Chevron now, because nonsense

  • Just Say'n||

    Sasse is the only guy with sense on that committee

  • Brendan||

    Where does Kelo v New London fit?

  • John Cuyle||

    Ideally in the waste bin.

  • PeteRR||

    Wickard vs Filburn is my own particular hobbyhorse.

  • chipper me timbers||

    This one for sure.

  • Muzzled Woodchipper||

    And the subsequent cases that relied on it for their ruling, like Raich.

  • Tony||

    This whole charade is premised on Sens. Collins and Murkowski being morons who can't figure out that no matter how much Kavanaugh lies through his teeth about precedent at the SC level, Roe is as good as dead as soon as he is confirmed.

    I wonder what the next wedge issue litmus test will be once they finally achieve their decades-long goal of government forcing women to give birth against their will. "I promise only to nominate judges who will smack midgets in the head."

  • Tom Bombadil||

    Maybe "I promise to only nominate judges who think the 2A is icky".

  • Brendan||

    Many states will still have abortion readily available, and, unlike something like firearm purchase, women will be free to travel to those states and obtain abortions.

  • chipper me timbers||

    Plus let's not kid ourselves here. If Roe v Wade goes down it will almost certainly result in congressional legislation to implement even stronger protections for abortion and let's not forget the court is getting stacked with a-holes who bow down before anything congress wants to do (I'm looking at you Roberts).

    So abortion is safe as can be anyone who thinks otherwise is getting hysterical.

  • chipper me timbers||

    This may even give Congress a brainfart moment where they accidentally pass some bill about privacy in general that extends beyond the uterus. . One can hope.

  • ||

    So this is the libertarian position? That as long as it isn´t explicitly mentioned in the Constitution, the state governments can impose as much ridiculous, absurd and vile regulation on pretty much any aspect of their lives, including their sex and reproductive lives, as they please, stripping their ciizens from almost any personal liberty they once thought to have? Sorry, I will always see state bans on abortions as no less of evil, unjustifiable statism than a federal ban.

  • Anastasia Beaverhausen||

    No, it's not the libertarian position, it's the conservative/federalist position. The libertarian position is that restrictive anti-freedom laws are repulsive, no matter whether it's the feds, state, county or city instituting them.

  • leninsmummy||

    There is no single libertarian position. It depends on whether the individual in question believes that the fetus is human life. Protecting human life would then become more important than privacy and choice for the mother.

  • Red Rocks White Privilege||

    This whole charade is premised on Sens. Collins and Murkowski being morons who can't figure out that no matter how much Kavanaugh lies through his teeth about precedent at the SC

    Every Supreme Court nominee lies about their actual beliefs now, including Kagan and the Wise Latina.

  • Red Rocks White Privilege||

    I wonder what the next wedge issue litmus test will be once they finally achieve their decades-long goal of government forcing women to give birth against their will.

    Tony, like his fellow hicklibs, apparently doesn't realize that people who support abortion all the way up until the baby is halfway out of the birth canal are in the minority.

  • Tony||

    But not people who support abortion rights that are actually on the table. But you knew that, which is why you made up some stupid shit.

  • Voyager||

    Which ones are on the table, and which cases wending through the works do you believe would be the key challenges?

    At the moment, I'm not aware of any.

  • ||

    So are people who want to ban all abortions. Or people who believe that to allow state governments to control people´s private lives however they please, or however the majority of the population pleases, is a libertarian thing to do.

  • ||

    As I was reading this comment, I was thinking it must be OBL. Tony has become the parody of himself.

    Carry on, midget-smackers...

  • Rock Lobster||

    Not all midgets are progressives, but all progressives are midgets. A discerning judge can tell the difference.

    https://www.youtube.com/watch?v=T3W4ZOlA08g

  • JoeBlow123||

    For fucks sake. Abortion debate part 1,000 is coming back. Thanks guys.

    This is like the Halloween movies, you think Michael Myers is dead and he just keeps coming back. As long as we have reliable morons like Tony to respond to every tug of his marionette masters we can look forward to these debates until even after humans have transcended their bodies and are nothing but electrical impulses floating through the cosmos.

  • Mark22||

    This whole charade is premised on Sens. Collins and Murkowski being morons who can't figure out that no matter how much Kavanaugh lies through his teeth about precedent at the SC level, Roe is as good as dead as soon as he is confirmed.

    You say that as if that were a reason not to confirm him.

  • Fist of Etiquette||

    Can we bring it down to a fifth grade level?

  • perlchpr||

    If you can hit HeadStart, Tony might get it.

  • OpenBordersLiberal-tarian||

    Roe v. Wade is not just any old precedent. Many legal scholars regard it as a SUPER-PRECEDENT. That means it really, really shouldn't be overturned, both because it produced such a desirable result and because it is based on rock-solid Constitutional analysis.

    Of course Drumpf, as part of his plan to turn this country into The Handmaid's Tale, wants both Gorsuch and Kavanaugh on the Supreme Court so they can reverse the best decision it's made in the past half century. Unfortunately the progressive / libertarian alliance failed to #StopGorsuch, but it's still not too late to #StopKavanaugh. Call your Senators and tell them this nominee is unacceptable. Be sure to mention the many other reasons Kavanaugh is unfit, such as the baseball ticket scandal, the handshake snub, and the Jewish Mexican woman's "white power" gestures.

    #Resist

  • Just Say'n||

    "Many legal scholars regard it as a SUPER-PRECEDENT."

    In actually, many legal scholars, including RBG, believe that Roe was a poorly decided case on shaky ground. It was inevitable that restrictions would eventually be allowed in a legal decision that guaranteed abortion essentially through nine months of pregnancy

  • Tom Bombadil||

    OBL is just kidding.

  • Mickey Rat||

    OK, superprecedent?

    Where we can get some kryptonite?

  • Tom Bombadil||

    After Kavanaugh is confirmed, Trump can retire. It's really more than anyone could ever have expected from 1.5 years in office.

  • ||

    Thomas can't be long for this world. His replacement is the one I'm most concerned about. I'm not sure when we'll see another jurist like him.

  • Joe M||

    He's not that great. He slides too standard-issue conservative a lot of the time. Gorsuch is already better.

  • Muzzled Woodchipper||

    When he's on the side of individual liberty he's great. But when he's not, he's as terrible as any other mainline conservative.

  • Quo Usque Tandem||

    ^

  • Mark22||

    Let's hope he'll get to replace RBG as well.

  • Scarecrow Repair & Chippering||

    For my part, I'd put The Slaughter-House Cases on the chopping block.

    Indeed. The debaters both pro and con said Privileges and Immunities meant the entire Constitution and the Bill of Rights, yet the damned court narrowed it down so much as to be meaningless, and by that time the Civil War was over and nobody in power cared any more.

  • Brendan||

    I wonder how much corruption there was for the State of Louisiana to decide on that particular remedy to the pollution problem.

    Nowadays it would just be a ban on releasing whatever into the water at such and such a place, and the slaughterhouses would have been forced to move or find another way to address their waste products.

  • Quo Usque Tandem||

    Corruption in post Reconstruction Louisiana was only surpassed in Reconstruction Louisiana.

  • Silverleaf||

    Imagine if baseball had to adhere to stare decisis. One umpire calls a guy "safe" who was out by a step, or calls a "strike" that was two inches outside. Then all of the other umpires have to follow, until the next one who blows a call at the new outer limits. The game would quickly become ridiculous.

  • jm15xy||

    Curiously engouh, both Kavanaugh and Gorsuch collaborated with other authors of a treatise on the law of judicial precedent.

  • Cranedoc||

    Point is, Kavanaugh is a legal genius and dedicated to the Constitution first. He's of good character and good heart, as well as ethical and upright. He's all we could ever want in a jurist, and America will be blessed to have his mind at the helm of the Supreme Court.

  • mockmook||

    "Point is, Kavanaugh is a legal genius and dedicated to the Constitution first."

    No, he isn't.

    Like all of the "elite", fancy lawyers he imagines that the arcane rules the courts have put in place trump the Constitution.

    He is dedicated to "stare decisis" above all (except in extraordinary circumstances).

  • Rob Misek||

    Roe vs Wade is an excellent example of the Supreme Court getting it wrong.

    They completely disregarded the scientific fact that from conception a new and distinct human life exists with all the rights of any other human. Their decision permits the murder of viable children.

    Instead they focussed on discriminating against the baby on the basis of its age using the erroneous presumption that viability describes the ability to live after being prematurely ripped out of the mother's body and that the baby somehow becomes deserving of human rights at that point.

    In fact, viability generally describes the ability to continue living without any interference. Most babies being aborted are completely viable. Now some dictionaries actually define viability, for humans only, to conform with the court decision. It is senseless.

    If we allow judges to make politically inspired policy based on misunderstanding and misrepresenting basic scientific definitions, and then later rewrite definitions to conform, then there are no checks and balances and no limit to the potential wrongdoing.

  • Mark22||

    They completely disregarded the scientific fact that from conception a new and distinct human life exists with all the rights of any other human.

    The Constitution doesn't protect human life, it protects persons. And the rights of either human being or persons are not subject to science.

    Their decision permits the murder of viable children.

    Roe v. Wade explicitly protects the right to an abortion only until fetal viability.

    Most babies being aborted are completely viable.

    Almost all abortions take place during the first trimester, i.e. before fetal viability

  • LibertarianJRT||

    Wickard v filburn. Lets overturn that.

  • John C. Randolph||

    What I want to know is how we throw out Wickard.

    -jcr

  • swampwiz||

    > "[Marshall] knew Plessy was wrong the day it was decided"

    Hmm ... Plessy was decided in 1896, whereas Marshall was born in 1908.

  • handsoffmypineapples||

    Words... English... how do they work?

    The wrongness of Plessy did not rely on Marshall having been born and educated. If I may rearrange Kavanaugh's two clauses: "Plessy was wrong the day it was decided [and] Marshall knew that."

  • AZ8Centrist||

    Thank you for this. It clearly shows how they are strategizing overturning Roe. Excellent blog.

  • Rob Misek||

    If we rip the baby out and it lives it is a human, if it does it wasn't.

    We clearly have come a long way since burning witches.

  • Rob Misek||

    Doesn't

  • Mark22||

    You know, I really don't care much about abortion either way. I'd be happy to limit it strongly.

    But it is nutcases like you whose absurd statements and hyperbole give "pro life" people such a bad name.

  • Rob Misek||

    Limit murder strongly eh?

  • QuantumBoxCat||

    Kavanaugh's comment also would seem to signal a road-map to those groups that seek as there ultimate goal to have Casey and Roe overturned; Attack Casey's "undue burden" standard by chisseling away its exterior through strategic litigation in federal district courts around the country. I think in this context the strategy is reactive though, as a state law restricting abortion would first be challenged by pro-choice (using conventional labels of the groups) and then defended by pro-life legal groups. The strategy though, from the pro-life perspective, would be to make different arguments in different cases occurring in different districts and circuits. As the undue burden standard is a balancing test as opposed to a bright-line-rule, a sympathetic court Supreme Court would merely readjust the weights in the test towards specific laws not constituting an undue burden. Over time, this should build a body of precedent that can then itself be used to challenge the standard wholesale, and ultimately the liberty interest articulated in Roe.

    So, don't expect any immediate over-turning of these cases. Rather, watch how the Court addresses smaller casses that deal with issue of abortion, and how those cases are then used in subsequent arguments by attorneys.

  • Rob Misek||

    All that is required is the recognition of the courts and government as to when a distinct human life begins.

    Then the burden of proof will be on those who want to murder them.

  • Jacky888||

    the 8 best yongnuo 50mm lens canon lensreviewlab

  • Jacky888||

    ilike x3 pro slim howtoandroitroot

  • Jacky888||

    the 8 best graduation dresses under 100 the8best

  • Jacky888||

    the 8 best over air tv antenna reviewtvantennas

  • Jacky888||

    the 8 best squid power strip bestpowerstrips

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online