”As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade.” — Brett Kavanaugh to Susan Collins during his confirmation hearing
Thursday night, conservative Chief Justice of the Supreme Court, John Roberts, joined the four liberals on the court to block a Louisiana anti-abortion law that the four other conservatives on the court asserted should be allowed to go through. These votes are the ultimate proof that the non-Roberts conservatives view the Supreme Court as a political body, and adhering to legal precedent comes secondary to enforcing the conservative view of the law.
In 2016, the Supreme Court struck down a Texas law in Whole Woman’s Health v. Hellerstedt. The law compelled abortion providers to get surgical privileges at a hospital within 30 miles of their clinics. The Supreme Court ruled that this law had absolutely no medical benefit to women and it put a substantial burden on abortion providers, and therefore was unconstitutional. This Louisiana law is modeled off this Texas law, and the four conservatives who voted to let Louisiana’s law stand quite literally ruled that Supreme Court precedent does not have to be obeyed in this arena.
During Brett Kavanaugh’s confirmation hearing, he put on a dog-and-pony show while trying to paint a picture of a justice simply interested in the law, and as his quote at the top of this story demonstrates, he made it seem as if he would respect precedent. This fraud he was perpetrating on the topic of abortion was clear as day to anyone who read through his past emails, like this one:
“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 yet, because he said he “understood the precedent set forth in Roe v. Wade” during his confirmation hearing, that was the narrative that took root throughout major media—not the opinions he expressed in private.
This dissenting opinion written by Brett Kavanaugh could not be clearer as to his motivations. “Precedent” takes a backseat to conservative ideology, and Kavanaugh joining three other conservative justices to rule that Louisiana does not have to adhere to the precedent set in the Texas case is the clearest indicator of how the conservative Supreme Court really views its job. This is some really convoluted logic from Kavanaugh to try to get around the fact that SCOTUS already made a ruling like this:
The State represents, moreover, that Louisiana will not “move aggressively to enforce the challenged law” during the transition period, Objection to Emergency Application for Stay 2, and further represents that abortion providers will not “immediately be forced to cease operations,” id., at 25. Louisiana’s regulation together with its express representations to this Court establish that even without admitting privileges, these three doctors (Doe 2, Doe 5, and Doe 6) could lawfully continue to perform abortions at the clinics during the 45-day transition period. Furthermore, during the 45-day transition period, both the doctors and the relevant hospitals could act expeditiously and in good faith to reach a definitive conclusion about whether those three doctors can obtain admitting privileges.
The point that Kavanaugh’s making is that Louisiana will not “move aggressively to enforce” law that the Supreme Court has already ruled unconstitutional. Had Kavanaugh written that Louisiana “pinky promised to not violate the law,” his reasoning would have been no less absurd. Don’t let the legalese in that paragraph distract you from the bankrupt logic contained within it.
Make no mistake about it: Brett Kavanaugh demonstrated in this opinion that when it comes to abortion access, he believes that upholding Supreme Court precedent takes a backseat to enforcing conservative ideology. Given that Gorsuch, Alito and Thomas did not sign on to Kavanaugh’s dissent, their motives are a bit more difficult to ascertain (yet still pretty obvious given their conservative view of abortion). The fact of the matter is that four of the five conservative justices on the Supreme Court voted yesterday to assert that Supreme Court precedent can be ignored on this subject (SCOTUS can overrule its own precedent, it typically just takes more logic than “the offender promised they wouldn’t do the unconstitutional thing that they already tried to do”).
The one conservative who did not vote to ignore SCOTUS precedent is the only conservative on the court who you could say cares more about the legitimacy of the Supreme Court than conservative ideology. When John Roberts voted to uphold President Obama’s Affordable Care Act in a 5-4 ruling that squashed a transparent political maneuver by the conservatives on the Court and their allies in the lower courts, it became clear that the Chief Justice was very concerned about people losing their faith in the Supreme Court’s legitimacy.
This is something to keep an eye on, as Roberts has voted to restrict abortion access in the past, but it’s clear that he draws the line at being a transparently hypocritical hack who values conservative activism more than judicial precedent. It’s clear that Brett Kavanaugh does not. Brett Kavanaugh will vote to strike down Roe v. Wade the minute he gets the opportunity, and activists around the country should already have a strategy ready to pressure Roberts to uphold the Court’s legitimacy (again) once this inevitability arrives on the Supreme Court’s docket.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.