Brett Kavanaugh, who touted importance of precedent during confirmation fight, downplays it as he considers reversing Roe - CNN
Dec 02, 2021 2 mins, 59 secs
Speaking more broadly, Kavanaugh at the time described the circumstances that the justices overturn precedent as "rare" and said that a court majority's disagreement with a prior ruling was, by itself, not enough to overturn it.

But Kavanaugh's tone on when the court departs from "stare decisis," the concept of standing by its previous decisions, was a bit different on Wednesday when the court debated the future of abortion rights and its previous rulings.

As he touted the "string" of "important" and "consequential" cases where the court had previously overturned precedent, Kavanaugh said Wednesday that "history tells a somewhat different story, I think, than is sometimes assumed."

His questions and comments Wednesday suggested he is inclined to uphold Mississippi's 15-week ban on abortion.

"When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said 'no.'"

Collins continues to support abortion rights, telling CNN on Wednesday she is "for Roe."

She declined to comment on Kavanaugh's remarks during the Mississippi case hearing, telling CNN she had not heard the arguments but was planning on listening to them Wednesday night.

On Thursday when asked by CNN whether she still believed that Kavanaugh viewed Roe as settled law, Collins said, "I think we all need to wait and see what the final decision is."

Court rulings on abortion that are 'precedent on precedent'

Kavanaugh was nominated to the Supreme Court by then-President Donald Trump, who promised during the 2016 campaign to pick justices who would "automatically" overturn Roe v.

He added that the "age of a precedent, as, I think, the Supreme Court itself has articulated many times, does ordinarily add to the force of the precedent and make it an even rarer circumstance where the court would disturb it."

Notably, when a Republican senator asked Kavanaugh a hypothetical question that abstractly described abortion foes' arguments for overturning Roe, Kavanaugh returned to the idea that the court sets "forth a series of conditions that you look for before you consider what you would overrule."

If the court thought a prior decision was "grievously wrong," it would then go "on to the next steps of the stare decisis inquiry," he said, which includes other factors the court takes into account.

Not sticking 'with those precedents'

Kavanaugh brought up the stare decisis principle on Wednesday, in a question that implied that precedents are overturned quite frequently and often in some of the most "important" and "consequential" cases.

"That's a list, and I can go on -- and those are some of the most consequential and important in the court's history -- the court overruled precedent," Kavanaugh said, noting that in those cases the court had been presented with arguments that it should adhere to the prior precedent.

He asked the attorney for the abortion providers that if the court has concluded now that Roe was decided wrongly, "why then doesn't the history of the court's practice with regards to those cases tell us that the right answer is actually a return to a position of neutrality -- and not stick with those precedents in the same way that all those other cases didn't?"

The court's liberal appointees pushed back at how Kavanaugh framed those cases, with Justice Sonia Sotomayor saying that most of those cases involved the court "recognizing and overturning state control over issues that we said belong to individuals."

Kavanaugh's comments also drew the condemnation of Lambda Legal, an LGBTQ rights organizations that was behind one of the cases that led to the same-sex marriage ruling Kavanugh cited.


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