With Kavanaugh’s nomination, the focus is on precedent — and on Roe v. Wade
It seems like the first box Supreme Court nominees must check: Provide solemn assurance that you respect judicial precedent, the principle that past court decisions should not be easily overturned, even if you may not have agreed with them in the first place.
And indeed, US Circuit Judge Brett Kavanaugh dutifully gave a nod to this tradition just moments after he was nominated to the Supreme Court this week: “A judge must interpret the Constitution as written, informed by history and tradition and precedent,” he said.
As his confirmation process begins, the issue of judicial precedent is of particular importance to Democrats concerned that a solidly conservative majority on the court could lead to a revocation of the landmark Roe v. Wade decision legalizing abortion.
Yet many of those same liberals cheered when the high court overturned precedent in 2003 to strike down antisodomy laws, setting the stage for its landmark 2015 ruling that extended same-sex marriage rights nationwide.
“Nobody thinks the court should never overrule itself,” said Richard D. Friedman, a University of Michigan law professor and a specialist on Supreme Court history. “It’s just a question of whose ox is being gored by any particular decision.”
Just this past term, the Supreme Court overturned decades of precedent by striking down laws that forced public employees to pay union fees. Justice Neil Gorsuch, who declared a deep respect for precedent at his confirmation hearing last year, joined the majority.
So what do judges mean — exactly — when they say they respect precedent?
“To be honest with you, though I don’t know how to put it technically — it’s a crock,” said Laurence H. Tribe, a professor of constitutional law at Harvard University. “Every judge as part of the judicial role starts from the assumption that an earlier case was probably right and shouldn’t be lightly overruled. But the court overrules cases with enormous frequency.”
“Precedent matters, but it always is subject to reconsideration,” he continued. “It is basically a fool’s errand to try to pin down any well-coached nominee to the court [on] just how much weight he or she would attach to earlier decisions.”
Erwin Chemerinsky, dean of the University of California-Berkeley School of Law, said he finds the whole public discussion around a nominee’s thoughts on precedent “unhelpful.”
“Every judge believes precedent should be followed except when it should be overruled,” he said.
It is a view shared by liberals and conservatives in the abstract, although each side thinks differently about which precedents deserve to be upheld, he said.
Sam Erman, a professor at the University of Southern California Gould School of Law and a former clerk for retiring Supreme Court Justice Anthony Kennedy, said precedent generally carries more weight when the earlier decision was unanimous, rather than a 5-4 split.
Decisions that people have come to heavily rely on are also more resistant to being overturned, he said. Judges generally care more about precedent than the public, viewing it as a principle that keeps their work relevant even after they have left the bench.
Tom Burke, a Wellesley College professor of political science who studies the role of courts in public policy, said that disputes that make it to the Supreme Court are by definition difficult cases. They generally involve competing legal principles, precedent being just one. Judges who uphold a precedent in one case and overturn it in another are not necessarily being inconsistent – they may just find other principles more compelling, he said.
“You can play gotcha for any justice in any area and say, ‘Oh you didn’t follow your principles there.’ But that’s silly. Because federalism, judicial restraint — any one of these concerns can be overridden in a particular context by other concerns. And so it is with precedent.”
Burke pointed to one of the most celebrated and consequential decisions in the court’s history, Brown v. Board of Education, the 1954 ruling that struck down racial segregation in public schools. That decision departed from the precedent of the infamous Plessy v. Ferguson decision in 1896, when the Supreme Court allowed “separate but equal” facilities for blacks and whites.
“The Brown court might have said to themselves, ‘Sure, respect for precedent is important. And sure, in general we like to defer to states and localities when it comes to decision-making. But what’s more important? When it’s about racial subordination, when you’re violating one of the core principles of the Constitution as amended, something has to give.’ ”
“There’s an old saying in constitutional law,” Burke added, “that the fact that someone else screwed up years ago doesn’t mean I should screw up as well. If you think a case was wrongly decided, there’s no reason in general to repeat the mistake.”