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Brett Kavanaugh wavered about the importance of precedent in Roe .’s debates

More broadly, Kavanaugh at the time described cases where judges overturned precedent as “rare” and said that the disagreement of a majority of the courts with the prior ruling was, by itself, insufficient to turn it upside down.

As he touted the “string” of “important” cases and the “consequence” that the court overturned previous precedent, Kavanaugh said Wednesday that “history tells a slightly different story, I think, than what is sometimes assumed.”

His questions and comments Wednesday suggest he is inclined to uphold Mississippi’s 15-week abortion ban. Mississippi wants to overturn Roe v. Wade’s 1973 Supreme Court decision to uphold the constitutional right to abortion, leaving the question of whether abortion could be outlawed for the states.

The statements Kavanaugh made about Roe and precedent in 2018 were key to him securing the support of Senator Susan Collins, a Maine Republican, abortion rights advocate and voter provider. important election to confirm Kavanaugh to the Supreme Court.

She declared at that time that Kavanaugh had told her privately that Roe suing Wade was “arranged law”, and pointed to his public remarks about precedent to explain why she supported his claim. that.

“In his testimony, he repeatedly noted that Roe was supported by Planned Parenthood vs. Casey, describing it as a precedent,” Collins said in her announcement of the vote, citing the statement. cited the 1992 decision. “When I asked him if it would be enough to overturn long-standing precedent if the current five judges believe it was decided wrong, he emphatically said ‘no’.”

Collins continues to advocate for abortion rights, telling CNN on Wednesday that she’s “for Roe.”

She declined to comment on Kavanaugh’s remarks during the Mississippi case hearing, telling CNN she hasn’t heard the arguments but is planning to hear them Wednesday night. In a later statement, her spokesperson said that Collins “intended to await the Court’s decision before making comment.”

Court ruling on abortion is ‘precedent above precedent’

Kavanaugh was nominated to the Supreme Court by then-President Donald Trump, who promised during the 2016 campaign. to choose a judge who will “automatically” overturn Roe v. Wade. By the time Kavanaugh was selected to replace the soon-to-retiree Justice Anthony Kennedy, Republicans held 51 seats in the Senate – two of which went to senators, who describe themselves as pro-abortion rights , making abortion the focus of his confirmation process.

Kavanaugh declined to give his views on Roe’s decision on value but said it was “a right to be respected under the law of precedent.”

“One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood. lawsuit against Casey in 1992,” Kavanaugh said during his confirmation hearing, adding that the Casey decision analyzed “staring determinants” when explaining why precedent was not overturned.

“It’s not as if a case of negligence was decided and never reviewed again, but Casey specifically revisited it, applying clear and decisive determinants,” Kavanaugh said. reaffirms it,” Kavanaugh said. “That makes Casey a precedent.”

In addition to remarks specifically about Roe, Kavanaugh made some general remarks on court precedent that emphasized the need to respect it and its importance to stability and predictability.

The Supreme Court could overturn its previous precedents, Kavanaugh said during his hearing, “but there are a bunch of important conditions, conditions that, if applied honestly, would be rare. when it happens.”

“And the preference system is rooted in the Constitution, it’s not a matter of policy being dropped at will,” he said. He added that “the age of a precedent, which, I think, the Supreme Court itself has stated many times, often adds to the validity of the precedent and makes it a rarer situation where the court judgment will disturb it.”

Notably, when a Republican senator asked Kavanaugh a hypothetical question that abstractly described the abortionist’s arguments to overthrow Roe, Kavanaugh reverted to the idea that the court posed “a series of conditions that you look for before considering what you will pass.”

If the court finds an earlier decision to be a “serious error,” he said, it will continue “to move on to the next steps of the review decision investigation,” which includes factors such as: otherwise considered by the court.

Not sticking ‘with those precedents’

Kavanaugh made the clear decision principle on Wednesday, in a question that implied that precedents are overturned quite often and often in some of the most “important” and “consequential” cases. .

“When I look at it, and the history of how the courts apply strict decisions, and when you really dig into it, I think history is somewhat telling a different story than it sometimes is. assumed,” he said. “If you think about some of the most important cases, some of the most consequential cases in the history of this court, there’s a string of them where the cases are beyond precedent.”

He cites cases involving racism, suffrage, business regulation, criminal justice and same-sex couples’ rights.

“It’s a list, and I could go on – and it’s some of the most consequential and important in the history of the court – courts have dismissed precedent,” Kavanaugh said, noting that in those cases In that case, the court was presented with the argument that it must follow previous precedent.

“If the courts had done that in those cases, you know, the country would be a very different place.” Kavanaugh said. He asked attorneys for abortion providers that if the court now concludes that Roe was wrongfully decided, “why is the court history regarding those cases not then?” tells us that the correct answer is really to revert to a neutral stance – and not stick to those precedents in the same way that all the others don’t?”

The court’s liberal appointees objected to the way Kavanaugh framed those cases, with Justice Sonia Sotomayor saying most of those cases involved the courts “recognizing and overturning control of the court”. state over matters that we say belong to individuals.”

Kavanaugh’s comments also drew condemnation from Lambda Legal, an LGBTQ rights organization behind one of the incidents that led to the same-sex marriage ruling that Kavanugh cited. “NOT IN OUR NAME,” the group said in a statement. “LGBTQ people need abortions. Equally important, those LGBTQ landmark decisions EXPAND individual liberties, not the other way around.”

The idea that the Constitution is “neutral” on abortion is something the adversaries of the procedure are contesting in the case, and it’s an idea Kavanaugh echoed in questions where he spoke about abortion. synthesis of Mississippi’s arguments.

“They say the Constitution doesn’t give us authority, we should leave it to the states and that we should be carefully neutral on the question and that they’re talking here,” Kavanaugh said Wednesday. , ask the provider’s attorney to respond to the argument.

In questioning the Department of Justice, which is arguing against overturning Roe, Kavanaugh asked, “Why should this court be an arbitrator instead of Congress, the state legislatures, the state supreme court? who can solve this?”

A decision in the Mississippi case, Dobbs v. Jackson Women’s Health, is expected next summer.

Ali Zaslav contributed to this report.

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