Kavanaugh and Precedents

Brent Kendall, in a piece in Monday’s The Wall Street Journal, wrote about the importance of judicial precedence and how willing Supreme Court Justice nominee Judge Brett Kavanaugh would be to overturn them.

Liberals warn that key rulings on abortion, affirmative action, and gay rights could be weakened or reversed by a court that leans further to the right. Many conservatives, on the other hand, hope those precedents will be limited by future rulings and eventually crumble, even if Judge Kavanaugh moves carefully rather than tearing through established doctrine.

Sure enough, in Tuesday’s Senate Judiciary Committee hearing’s opening remarks, it was the End of Days according to the Progressive-Democrats on the Committee.  Kavanaugh represents, you see, everything wrong with President Donald Trump (even though his nomination to office was confirmed a couple of years ago), with Republicans, and with the non-Progressive world.  Women will die (although unborn babies dying doesn’t matter).  People will get horribly sick.  Segregation will return (although it was the Progressive-Democrat Woodrow Wilson who resegregated the Federal government work force that post-Civil War Republicans had integrated, and it’s Progressive-Democrats’ identity politics that actively seeks to segregate Americans politically.)  Violence will rule the streets.

As Kendall pointed out, though,

The judicial doctrine of stare decisis—respect for precedent—is a pillar of the US legal system, and justices generally are reluctant to toss out a ruling without a compelling reason that goes beyond believing it was wrongly decided.

There are two reasons why a precedent should be reversed or overturned by a court, in particular by the Supreme Court.  One, contra reluctant judges (and Kendall?), is if the precedent was wrongly decided: in that case, the precedent should be overturned.  Allowing an error to stand only allows injustice from the error to stand, and the longer the delay in correcting the error, the greater the injustice.  It’s never too late to correct an error.

The other reason is if the circumstances of the precedent no longer apply.  An example of this is the Supreme Court’s ruling of a lack of presumption of privacy in its upholding warrantless wiretapping of a wireless telephone connected to its homeowner’s base station by a then-unencrypted radio signal.  The public has gotten quite a bit more sophisticated about privacy and quite a bit more concerned with preserving it in all venues today, and so the circumstance of that precedent no longer applies—it should be reversed.

In either case, though, it’s not a straightforward affair to come to the recognition of error or of inapplicability.  That depends on the particular facts of a case and on what the applicable law actually says.  It’s unreasonable to expect Judge Kavanaugh to be able to comment substantively on whether he’d use a case to overturn Roe v Wade, for instance, or any of the other cases the Progressive-Democrats have their panties twisted around: he hasn’t seen those cases, since they haven’t come before him.

It’s also unreasonable to say what he might do, as Justice Ruth Bader Ginsburg said at her confirmation hearing.  To speculate in advance would be to prejudge those cases, and no honest judge can do that.

The Progressive-Democrats know that, also.

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