Skip to comments.Justice Kavanaugh cites Roe v. Wade when writing on 'erroneous precedents' in court decision about verdicts
Posted on 04/22/2020 6:57:54 AM PDT by SeekAndFind
Supreme Court Justice Brett Kavanaugh cited two major abortion-related decisions in a concurring opinion spelling out when "erroneous precedents" ought to be overturned.
Monday's majority opinion, authored by Justice Neil Gorsuch, overturned a prior decision about unanimous jury verdicts, striking down state laws in Louisiana and Oregon which allowed people to be convicted of serious crimes with non-unanimous jury votes. The now-reversed 1972 ruling upheld nonunanimous verdicts in state courts. The final vote was 6-3, with a mixture of the court's conservative and liberal justices on both sides, agreeing mostly or in part with the decision.
In his concurrence, the newest member of the high court whose contentious confirmation roiled the nation in the fall of 2018 brought up the doctrine of stare decisis, noting that it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."
But he added, "The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions."
Kavanaugh brought up Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide, and Planned Parenthood v. Casey, a 1992 case that reaffirmed the core holding of Roe but challenged other elements of the ruling.
"In Casey, the Court reaffirmed what it described as the 'central holding' of Roe v. Wade," Kavanaugh explained, adding that the court also "expressly rejected Roes trimester framework, and the Court expressly overruled two other important abortion precedents.
The justice elaborated that the tradition following judicial precedent, which is often called the doctrine of stare decisis, "is not an inexorable command," noting that to overrule a constitutional precedent, the Court requires something over and above the belief that the precedent was wrongly decided.
[E]ven when judges agree that a prior decision is wrong, they may disagree about whether the decision is so egregiously wrong as to justify an overruling, he wrote, going on to explain that in some instances justices might disagree about the severity of the jurisprudential or real-world consequences caused by the erroneous decision and, therefore, whether the decision is worth overruling.
Whether Kavanaugh's citation of the famous abortion cases in Monday's opinion means anything beyond the case at hand remains to be seen though speculations are mounting that he may be laying the groundwork for future challenges to the current legal abortion regime.
Early last month, the Supreme Court heard oral arguments in the case of June Medical Services v. Russo, which centered around a Louisiana law mandating abortion facilities have admitting privileges to local hospitals as is required of other ambulatory surgical centers. The case is the first abortion-related dispute to be heard before the high court with both of President Trump's appointees, Neil Gorsuch and Brett Kavanaugh, on the bench.
In 2016, the high court struck down a similar Texas law in Whole Woman's Health v. Hellerstedt, holding that the restriction was unconstitutional because it placed an undue burden on a woman seeking an abortion.
Yet the Fifth Circuit Court of Appeals, which has jurisdiction over Texas and Louisiana and adjudicated both laws prior to reaching the Supreme court, held that despite the similarities in the statutes, "stark differences" exist between the factual records of the two cases.
Suck on that, liberals! I guess we know how Justice Kavanaugh will vote if this ever comes up before the court.
Although, this fact will likely play heavily in the fight for president Trump’s next nomination to the court to replace the notorious RBG.
Debra Katz, attorney for Kavanaugh accuser Blasey-Ford, said the attack on Kavanaugh was motivated by abortion:
From November 2019:
Blasey Ford Attorney Admits Abortion Support Motivated Anti-Kavanaugh Accusations
A shot across the bow, quite nice.
I guess we know how Justice Kavanaugh will vote “
Hmm I don’t think we do know that. Besides Roberts will NEVER overturn RvW. We need to flip at least one rat seat probably two.
to overrule a constitutional precedent, the Court requires something over and above the belief that the precedent was wrongly decided.
This is stupid. If a case is decided wrongly it should be overturned, period.
I reject stare decisis in whole, period.
The argument for it pretends to sound like with stare decisis the courts are protecting something that must not be changed - the law as it has become known and understood (they refer to this saying it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”.
Yet Congress changes laws all the time, and when it does some ox that was not gored in the past can get gored under the new law, and some ox that was not spared under the old law can be spared under the new law. The jurists must then think that makes the law not “evenhanded”, not “predictable”, alters “legal principles”. Yet, where in the Constitution does it say, that preserving in stone, prior passed laws, or prior court decisions, is necessary for the sake of the Constitution or the nation.
As for something that “fosters reliance on judicial decisions”, and “contributes to the actual and perceived integrity of the judicial process”, those are things where the justices are merely trying to protect their own reputation, not JUSTICE. And quite factually it is not really their own reputation but the reputations of justices that went before them, some of whom do not deserve to have their reputations honored and preserved.
We have Constitution meant to be applied as if in stone, except wherein We The People have revised it.
But that template, the Constitution, was not intended to preserve what any one Congress has ever legislated nor what any Supreme Court has ever ruled. All acts of Congress and all court decisions are mutable, only the Constitution is not.
It is NOT a good idea to take Stare Decisis as absolutely sacrosanct.
Courts have been wrong in the past. Therefore following past decisions blindly will only compound the wrong.
I agreed with you.
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