It’s La Domanda di Tutti Domande when it comes to Supreme Court confirmation hearings: Will you overturn Roe? Nominees from Democrats embrace the “right to choose,” while nominees from Republicans talk about stare decisis and the need to respect it. Even if Brett Kavanaugh’s answer was seen in a political vacuum, you’d know exactly which party’s president nominated him.
However, Kavanaugh seems to have gone a long way to reassure Dianne Feinstein on the role of stare decisis:
Asked about his view on Roe v. Wade, Kavanaugh says it’s a “settled precedent of the Supreme Court” that has been “reaffirmed many times over the past 45 years” https://t.co/WAwKBbR3CM pic.twitter.com/RmE6Pn54Mt
— CBS News (@CBSNews) September 5, 2018
Asked his position on a woman’s right to choose, Judge Kavanaugh said “as a judge, it’s an important precedent of the Supreme Court, reaffirmed many times.” Al;so said he understands its importance. “I don’t live in a bubble. I live in the real world,” he told @SenFeinstein. pic.twitter.com/fxW0S7Q9cZ
— Mark Knoller (@markknoller) September 5, 2018
This sounds like a very reassuring answer — so much so that Feinstein wrapped up her 30-minute question period by thanking Kavanaugh for being so “forthcoming.” That’s not the word commonly used by Democrats for Republican nominees attempting to adhere to the “Ginsburg standard,” needless to say. The reassurance includes Kavanaugh’s insistence that his personal views do not trump precedent, as he explained to Chuck Grassley:
Grassley: Could you tell us your views on the value of precedent? [And] have you ever followed precedent …when doing so conflicted with your personal beliefs?
Kavanaugh: My personal beliefs are not relevant to how I decide cases. [And] precedent is the foundation of our system. pic.twitter.com/GzUUblB3j7
— POLITICO (@politico) September 5, 2018
It may be that Democrats are barking up the wrong tree in more ways than one with Kavanaugh. He has built an impressive record on the appellate court as an originalist thinker, but he’s also been very deferential to precedent, as Kavanaugh himself notes. If that’s the basis of his approach to jurisprudence, one has to wonder whether Kavanaugh really would vote to overturn Roe even if he had the chance.
It might require a more activist than originalist nominee to carry out that task, but it’s not even clear that Amy Coney Barrett would have voted to pull the trigger on overturning Roe. That would necessarily require overturning Casey (as Kavanaugh explicitly points out to Feinstein) at the same time, which is an awful lot of precedent to dismantle at one. As I wrote two months ago, even Barrett has recognized the roles of “superprecedents” in the judicial system, which are self-perpetuating because they operate so strongly that cases just never get past the district courts which might require a review of those decisions. Abood was not one of those, having been reduced and limited over the years, so a majority on the court felt comfortable enough in the previous term with dispensing with it. That’s not the case with either Roe or Casey.
At the very least, Kavanaugh and John Roberts wouldn’t push that line on a 5-4 vote. It’d take at least one and maybe two more like-minded justices to start unraveling the Roe quilt, and it would likely have to start with Casey first. That may be more “real world” than conservatives want to see, but Roe isn’t the only reason to appoint conservatives and originalists to the judiciary, either.