Overturning Supreme Court precedent

  • 10 September 2018
  • NormanL

The Senate Judiciary Committe hearings over Brett Kavanaugh's nomination to the U.S. Supreme Court are over. While we got plenty of political theater, senatorial grandstanding, and Democratic presidential wannabe posturing, we also got something very useful, as Reason Magazine's Damon Root explains. The issue Kavanaugh discussed was how a Supreme Court ruling could be overturned -- even one everybody says is settled law, and beyond challenge.

It turns out, there are plenty of very good reasons to overturn old rulings:

[Sen. Ben] Sasse approached the question of overturning precedent from a different angle. "It isn't the case that every decision the Supreme Court has ever made is right and is now a part of the permanent rulebook. You sometimes have to throw them out," he said. "So, sixth-grade level, help us understand how from 1896 to 1954…in those 58 years the Court was wrong for that whole time." Sasse was referring to Plessy v. Ferguson, the 1896 ruling that enshrined the doctrine of "separate but equal," and to Brown v. Board of Education, the 1954 decision that overruled Plessy. "The way we think about precedent," Sasse observed, "we might have our sixth graders thinking we should always take every received decision as right. So how do you reconcile the two?"

"One of the genius moves of Thurgood Marshall," Kavanaugh replied, "among many genius moves, was to start litigating case by case." Marshall was the NAACP lawyer (and future Supreme Court justice) who spearheaded the litigation and ultimately argued and won Brown before the Supreme Court. "He knew Plessy was wrong the day it was decided," Kavanaugh continued. "But he also knew as a matter of litigation strategy the way to bring about this change was to try to create a body of law that undermined the foundations of Plessy. And he started litigating cases and showing, case by case, that separate was not really equal." That, Kavanaugh concluded, was how Marshall "was able to show that the precedent, even with principles of stare decisis in place, should be overturned."

This exchange illuminates a crucial point that tends to get ignored amidst the spectacle of a confirmation fight. That point is this: Nobody truly believes that Supreme Court precedent is 100 percent sacrosanct. Nobody on the left thinks this, and nobody on the right thinks this. Indeed, everybody involved in the legal debates over the meaning and application of the Constitution can probably name at least one SCOTUS precedent that they would like to see destroyed.

The left is stirring the pot over Roe v. Wade. That's to motivate their base (and raise money...but none dare say that aloud). Conservatives probably want Roe to disappear, but aren't likely to mount a frontal political assualt on the issue.

What's important to understand from the exchange between Sasse and Kavanaugh is no decision, no matter how old, important, or entrenched, is immune from change. That the morally and constitutionally odious Plessy decision was eventually tossed is a prime example. Does it mean Roe or other court precedents face immediate danger if Kavanaugh is confirmed? Of course not. But regardless of what people might wish, court rulings are not holy edicts.