Supreme Court nominee Brett Kavanaugh’s argument in a newly released document from 2003 that the Supreme Court can overturn “settled law” on the issue of abortion is sure to stir up additional speculation about how he would rule on a new challenge to Roe v. Wade.
A CNN analysis of data from the Congressional Research Service shows overruling Roe would be unusual but far from unprecedented: The Supreme Court has overruled more than 300 of its own cases throughout American history, including five dozen that lasted longer than the landmark abortion rights case to this point.
In the new document, made public Thursday after it had been kept confidential by the Senate Judiciary Committee, Kavanaugh made the point that “settled law” is nothing permanent before the court.
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so. The point there is in the inferior court point,” Kavanaugh wrote, responding to a draft op-ed that was circulated for edits between lawmakers and White House staff.
At his confirmation hearing Thursday, Kavanaugh said he was making a point about overstating the consensus of legal scholars, not about the abortion decision.
But that phrase “settled law” has emerged as a litmus test for judicial nominees to indicate their support for precedent, particularly on the complicated issue of abortion.
Observers say Kavanaugh could be a pivotal swing vote to overrule Roe if a case comes before the Supreme Court.
To be sure, the vast majority of cases decided by the Supreme Court are never overruled. Further, this CNN analysis shows that more than half of the cases that have been overturned by the high court are overruled within two decades of the initial decisions.
Still, 60 cases have been overturned after serving as established precedent for at least 46 years. Roe, which was decided in January 1973, will reach its 46th anniversary in January 2019.
Four out of every five cases overruled by the Supreme Court were overturned before reaching that 46-year mark. The average case that was overruled by the Supreme Court stood for 28.7 years before being overruled.
Kavanaugh, 53, a former George W. Bush aide who has served for twelve years on a powerful Washington-based federal appeals court, began confirmation hearings on Tuesday.
The term “settled law” has emerged as a test to indicate respect for established precedent. But, as CNN Supreme Court reporter Ariane de Vogue has explained, agreeing that Roe v. Wade is “settled law” doesn’t preclude overruling it.
During the 2016 presidential campaign, both President Trump and Vice President Pence said their nominees to the Supreme Court would overrule Roe v. Wade.
Here’s what Maine Sen. Susan Collins, who could be a crucial swing vote in the Senate confirmation process, told Jake Tapper on CNN’s “State of the Union” in July, just a week before Kavanaugh was nominated.
COLLINS: “Well, first of all, let me say that there’s big difference between overturning some precedents, such as Plessy vs. Ferguson, which was overturned in the school desegregation case of Brown vs. the Board of Education, vs. overturning a ruling that has been settled law for 46 years — 45 years. And it involves a constitutional right and has been reaffirmed by the court 26 years ago. Indeed, Justice Roberts has made very clear that he considers Roe v. Wade to be settled law. I would not support a nominee who demonstrated hostility to Roe v. Wade, because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.”
Still, just this summer, a majority on the Supreme Court, including Chief Justice John Roberts and former Trump nominee Neil Gorsuch, overruled the 1977 precedent of Abood v. Detroit Board of Education in a case on public sector union fees called Janus v. AFSCME. That precedent had been law of the land for more than four decades.
Justice Elena Kagan unleashed a scathing dissent in that case, writing: “Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world.”
(It’s also worth noting here that 58 years separated Plessy v. Ferguson in 1896 and Brown v. Board of Education in 1954.)
To be clear, frameworks exist to decide whether or not the Supreme Court ought to overturn precedent. Here’s how Lindsey Graham explained this to Dana Bash on CNN’s “State of the Union” this past Sunday when asked whether he hopes Kavanaugh would vote to overturn Roe:
GRAHAM: “Well, here’s what I hope he will do. If there’s a case before him that challenges Roe v. Wade, that he would listen to both sides of the story, apply a test to overturn precedent. Precedent is important, but it’s not inviolate… The bottom line here is, there’s a process to overturn a precedent. And I think he understands that process. He will apply it… But it is a long-held precedent of the court. It will be challenged over time. And I hope he will give it a fair hearing, and I know he will.”
The Court has been reluctant to overrule its own precedent over the years under the legal principle of stare decisis: “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right,” wrote former Supreme Court justice Louis Brandeis, in a ruling cited often when overruling precedent is considered.
Two in three American voters say it would be a bad thing if the Supreme Court opted to overrule Roe, though six in 10 of them say it’s unlikely the high court will do so in the next few years, according to a survey from Quinnipiac University in late July.
The list from the Congressional Research Service includes “only those cases in which the Court has explicitly stated that it is overruling a prior case, or issues a decision that is the functional equivalent of an express overruling,” according to the compilation. Some decisions overruled more than one previous case, in whole or in part.
This review does not include the 1944 decision in Korematsu v. United States, which allowed the forcible internment of Japanese Americans during World War II, which was condemned in a controversial June 2018 ruling on President Trump’s travel ban. Still, the majority did not expressly overrule the 74-year-old ruling, nor did the new case, Trump v. Hawaii, raise the same issue on the merits. “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,'” Roberts wrote. Roe, unlike Korematsu, has remained at the top of the active American political divide for all of the decades of its existence.