Justice Brett Kavanaugh Sets Up Overturning Roe v. Wade: “Sometimes Appropriate to Overrule Erroneous Decisions”

National   |   Steven Ertelt   |   Apr 21, 2020   |   2:07PM   |   Washington, DC

Justice Brett Kavanaugh and conservatives on the Supreme Court appear to have set up the legal rationale for someday overturning the roe v. Wade case from 1973 that allowed virtually unlimited abortions throughout pregnancy.

Abortion activists and leading Democrats for years have attempted to turn Roe into some sort of ultra-precedent that for some reason can’t be overturned because it has been on the books for decades– even though the nation’s highest court has overturned precedents previously when needed, such as cases related to slavery and civil rights.

In a decision earlier this week, the Supreme Court ruled on a case unrelated to abortion — but one that could have a massive impact on Roe. And its ruling, authored by Justice Kavanaugh, set for examples of cases that might be overturned and explained why overturning precedent is definitely allowable.

The justices, in a 6-3 decision, overturned a 1972 Supreme Court case in ruling that the Sixth Amendment requires unanimous verdicts. The case involved a Louisiana man who was convicted of murder on a 10-2 verdict.

Much of the discussion among the justices focused on the legal doctrine of stare decisis, a Latin term meaning “to stand by things decided.” In essence, it’s the doctrine of precedent and is often discussed when the Supreme Court overturns a past case.

“The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents,” Kavanaugh wrote in a concurring opinion. “All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.”

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Kavanaugh then listed seven recent cases.

His mention of Roe v. Wade came in the next paragraph after he wrote, “Some of the Court’s most notable and consequential decisions have entailed overruling precedent.” Kavanaugh then referenced Planned Parenthood of Southeastern Pa. v. Casey, a 1992 case in which the justices overturned much of the Roe framework but upheld legalized abortion. He was not on the court at the time.

A writer at National Review noted the opinion and its abortion implications.

By contrast, both Justice Kavanaugh’s opinion and Justice Alito’s dissent delved deep into the nuances of stare decisis, in ways that offer tantalizing glimpses of the elephant in the room in any discussion of stare decisis: Roe v. Wade. Kavanaugh stepped back and laid out a scholarly, multi-factor test for deciding when to follow precedent. While he was more respectful of the importance of precedent than Gorsuch, he also noted that “in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents” and warned that the Court needed “a structured methodology and roadmap” for when to overrule precedents if it was going to treat them “in a neutral and consistent manner.”

Kavanaugh came right out and said one thing that previous justices have often only danced around: It matters how wrong the previous decision was, and disagreement over whether a decision was wrong “is sometimes the real dispute when judges joust over stare decisis.”

On the subject of abortion, Kavanaugh went out of his way, in listing “some of the Court’s most notable and consequential decisions” that “entailed overruling precedent,” to include Planned Parenthood v. Casey. Casey, in 1992, claimed to uphold Roe entirely on the grounds of the vital importance of stare decisis. Justice Scalia’s now-legendary dissent in Casey eviscerated the Court for claiming that its hands were tied by precedent, even as it rewrote both the flimsy legal rationale of Roe and its medically obsolete trimester framework. By classifying Casey as an overruling of precedent, and adding a footnote defending that view of the decision, Kavanaugh is openly signaling his agreement with Scalia’s critique of Casey as an unprincipled hash.

Other than Justice Clarence Thomas, it’s not generally known where the other justices stand on overturning Roe. But their support for overturning precedent and Kavanaugh’s decision citing the overturning of abortion precedent as one instance where the Supreme Court can and has gone back on Roe, is an encouraging sign that the conservative justices on the high court are open to revering precedent and abortion precedent in particular.

Most observers believe the Supreme Court has anywhere from 3-5 votes to overturn Roe with Justice Thomas firmly in support, Justices Kavanaugh, Gorsuch and Alito has likely to support reversal and Chief Justice Roberts as a maybe. Some pro-life legal scholars think it would be helpful to replace one of the four pro-abortion liberals with another conservative to make it even more likely that there are enough votes to overturn Roe. The only way to accomplish this is to secure a second term for President Donald Trump to have another four years with which to mov ethe court away from abortion on demand.