Many people are rightly worried that the appointment of “Conservative” Brett M. Kavanaugh will lead to the reversal of Roe v. Wade and other constitutional protections. With that in mind, I think that the Democratic Senators have to do a better job of framing this debate in the nomination hearings. And my points below are not that Democrats necessarily could stop his nomination. Rather, the confirmation proceedings are an opportunity to educate and galvanize the public voters, and perhaps (albeit unlikely) to influence the nominee’s thinking.
With that in mind, Democratic Senators should pursue the following two questions:
1. Has a U.S. Supreme Court majority ever reversed a personal right previously recognized under the Constitution?
2. When does the principle of stare decisis, or respect for precedent, require that the Constitution be amended formally to reverse a previously recognized constitutional right?
Too often I read stories about how Roe v. Wade may be reversed as if it is a matter of pure political power, or what is sometimes referred to on the Supreme Court as “the power of five” [votes]. But that framing gives short-shrift to the real issues here and ultimately presents a weak argument that undermines core concerns and enables bad jurisprudence.
- The first question is a succinct, powerful and correct framing of the question at hand. Has the U.S. Supreme Court ever recognized that an individual has a personal right — a freedom — protected by the U.S. Constitution and then had a subsequent Supreme Court take that right away? Has that ever happened in the history of this country? Is there any, ahem, precedent for such an outcome?
Remember, under the Roe reversal scenario, an older woman would have to say to a granddaughter, a niece, a friend: “Things were different for me. I had a fundamental right to an abortion that was protected under our Constitution. You no longer have that. The Constitution has not changed; they simply took that personal freedom away from you.”
And I want to be clear — I am not asking whether the Supreme Court has revisited or reversed a previous determination under constitutional law. I am asking specifically if the Supreme Court has ever recognized a personal right or protection under the Constitution and then taken that personal right or freedom away? There are many issue large and small that touch upon the Constitution, but personal freedoms are of a different, higher category.
I am not aware of any previous, similar example of the Supreme Court eliminating a personal constitutional right. (There are many lawyers and smart people here. Am I wrong?)
Thus, the question to nominee Kavanaugh is not whether he would reverse Roe, but does he think he could reverse Roe? On what basis, what authority, what precedent? If he does believe that he could does this, what implications does that have for a “limited judiciary,” for the legitimacy of the courts? What, if any, special constrictions should be placed on this power? If nothing else, should a unanimous or near unanimous Supreme Court be required to take reverse or eliminate a previously recognized personal right under the Constitution?
To me, Justice Kavanaugh and the the other Justices at this point have no right to reverse Roe — it is instead a question for the amendment process discussed below.
Crucially, I believe that the above discussion can be had at the nomination hearing in the abstract and without mentioning Roe or any other specific decision. Nominee Kavanaugh should not be able to wiggle so easily out of these questions under the guise of refusing to answer questions about a potential pending case. These are questions of judicial philosophy, a question of the limits of the judiciary, a question of broad interpretation of the Constitution.
- The second, related question, although procedural in some sense, is no less important. Consider the following: (i) The U.S. Supreme Court has the final say in determining what the Constitution means. (See Marbury v. Madison) (ii) Roe is a 45 year old precedent, decided by 7-2, and whose core holding has been repeatedly reaffirmed, that held that the Constitution protects a woman’s right to an abortion, and (iii) Art. V of the Constitution provides the procedures to democratically amend the Constitution — something that has occurred successfully 27 times to date.
In light of those three facts, when does the principle of stare decisis, or respect for precedent, require that the U.S. Constitution be formally amended to reverse a previously recognized constitutional right?
Again, I want to be clear that I am not talking about every decision that touches upon interpreting the Constitution. The Supreme Court will not, and should not, lock in place — immune to subsequent reversal — every decision by a prior Supreme Court touching upon constitutional issues.
But when a prior Supreme Court decision recognizes a personal right, freedom or protection — and when that decision stands for decades, and weaves itself into the national fabric and expectations — doesn’t there come a point when the citizenry must invoke the machinery of a constitutional amendment to reverse it? When that well established decision is no longer subject to the whims and preferences of the currently sitting Supreme Court members?
The funny thing is that the Supreme Court is a small-c “conservative” institution. It has neither the “power of the purse, nor the power of the sword.” For all of its apparent solemnity and power, it relies entirely on the consent and acceptance of others to abide by and enforce its decisions. It is, at core, a fragile and tenuous institution and it is structurally weaker in terms of power than the other two branches.
You see, the questions are not whether nominee Kavanaugh agrees with Roe, or would he have decided it differently if he were on the Supreme Court at the time. The real question is whether nominee Kavanaugh thinks that, upon confirmation, he will have the power to take away constitutional rights and freedoms that citizens have enjoyed for near half a century?
And as nominee Kravanaugh celebrates his professed belief in a limited and circumscribed judiciary, does he recognize and acknowledge that the process for amending the Constitution is the legitimate and established avenue — if any is needed — for eliminating recognition of long-established and personal constitutional rights?
To me, the above would be the most effective discussion to have with nominee Kavanaugh, and the public can judge his answers.