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Kavanaugh Fires Off List of Bad Precedents in Questioning Roe

Dec. 1, 2021, 7:40 PM

Two words kept coming up in arguments over the fate of abortion rights at the U.S. Supreme Court on Wednesday, and while they may sound dry, they’re at the heart of a dramatic struggle between the court’s six-member conservative majority and its three liberal stalwarts.

Stare decisis, the legal principle that the court should stand by its own decisions, was a central issue at the hearing on a Mississippi law that bans almost all abortions after 15 weeks of pregnancy. The court established a legal right to an abortion in the 1973 case Roe v. Wade and has reaffirmed that decision many times, most notably in Planned Parenthood v. Casey in 1992. Mississippi is asking the justices to overturn Roe and Casey.

Brett Kavanaugh
Photographer: Andrew Harrer/Bloomberg

Under the stare decisis doctrine, there’s a high bar for abandoning such a well-established precedent. At Wednesday’s hearing, the justices seemed to invoke the concept variously as a warning to their colleagues or a challenge to the lawyers arguing before them.

Here are some of the heated ways in which the Latin phrase came up as they quizzed the attorneys for both sides. The court’s conservatives are Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The liberals are Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.

Brett Kavanaugh

Kavanaugh fired a series of questions about the doctrine at Julie Rikelman, who represented the abortion clinic that sued to block the Mississippi law. He rapidly ticked through famous cases in which the court has undone precedent, including its Brown v. Board of Education decision against school segregation, as well as decisions on same-sex marriage, electoral redistricting and sodomy laws.

If the court decides that a past decision is wrong, he asked, “why then doesn’t the history of this court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality?”

Amy Coney Barrett
Photographer: Sarah Silbiger/Bloomberg

Amy Coney Barrett

Barrett called stare decisis “obviously the core of this case” and noted that it allows for “some circumstances in which overruling is possible,” citing Brown as an example. She asked the Mississippi solicitor general, Scott Stewart, whether the potential public reaction to a reversal should play into the court’s decision-making.

“Is that a factor that you accept?” she said. “Or are you arguing that we should minimize that factor?”

Elena Kagan

Kagan argued that stare decisis is an especially important principle in this case “to prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells loudest.”

Elena Kagan
Photographer: Erin Schaff/The New York Times/Bloomberg

“Usually there has to be a justification, a strong justification in a case like this, beyond the fact that you think the case is wrong,” she said. “What strikes me when I look at this case is that, you know, not much has changed since Roe and Casey.”

Stephen Breyer

Breyer challenged Stewart, the lawyer for Mississippi, to identify how Roe is different enough from other cases to justify a departure from Supreme Court precedent. Abortion critics say “Roe’s special,” he said. “What’s special about it?”

He later emphasized the importance of maintaining a high bar for overturning precedents. Such reversals must be “grounded in principle,” he said, “and not social pressure, not political pressure.”

--With assistance from Seth Stern.

To contact the reporters on this story:
David Yaffe-Bellany in Washington at davidyb@bloomberg.net;
Peter Jeffrey in New York at pjeffrey@bloomberg.net

To contact the editors responsible for this story:
Katia Porzecanski at kporzecansk1@bloomberg.net

Elizabeth Wasserman

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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