epaselect epa06997422 Circuit judge Brett Kavanaugh is sworn in during his Senate confirmation hearing to be an Associate Justice of the Supreme Court of the...
JIM LO SCALZO

Why Kavanaugh’s ‘settled precedent’ position on Roe isn’t enough

The Rachel Maddow Show, 8/16/18, 9:51 PM ET

Tape hints Kavanaugh opposes marriage equality, abortion rights

Rachel Maddow shares a new tape of Donald Trump Supreme Court nominee Brett Kavanaugh discussing Antonin Scalia’s opposition to marriage equality and abortion rights, characterizing them as “new rights” not guaranteed by the Constitution.
Rachel Maddow shares a new tape of Donald Trump Supreme Court nominee Brett Kavanaugh discussing Antonin Scalia’s opposition to marriage equality and abortion rights, characterizing them as “new rights” not guaranteed by the Constitution.
When Sen. Susan Collins (R-Maine) met with Judge Brett Kavanaugh a few weeks ago, it drew far more attention than many of the Supreme Court nominee’s other meetings. After all, Collins is not only one of a handful of pro-choice Republicans still in Congress, she’s also one of a few GOP senators who could conceivably derail Kavanaugh’s chances of confirmation.

But if progressive observers were counting on Collins to have a negative impression of the conservative jurist, those hopes were soon dashed. After meeting with Donald Trump’s choice for the high court, the Maine Republican explained that Kavanaugh agreed that he, like Chief Justice John Roberts, sees the Roe v. Wade debate as “settled as a precedent of the court” and “settled law.”

He used similar language during his confirmation hearing this morning.

President Donald Trump’s Supreme Court nominee Brett Kavanaugh said on Wednesday that Roe v. Wade, the landmark ruling protecting abortion rights, is “an important precedent of the Supreme Court that has been reaffirmed many times.”

Addressing the Judiciary Committee’s top Democrat, Sen. Dianne Feinstein of California, Kavanaugh said that the 1973 case “has been reaffirmed many times over the past 45 years, as you know.”

As part of the same exchange, the nominee described  Roe as “settled as a precedent of the Supreme Court.”

Casual progressive observers, eager for some reason to hope, might hear Kavanaugh comments like these and conclude that he’s inclined to leave the 1973 precedent intact. That would be a mistake.

Scott Lemieux recently had a good piece on this for NBC News, explaining, “The opponents of legal abortion who supported Trump and Kavanaugh know exactly what they’re doing and what they’re getting in Kavanaugh.”

…Roberts’s claim, now echoed by Kavanaugh, that Roe was settled precedent is technically true, but not very meaningful. Roberts also correctly observed that the Court is not always bound by its own precedents, and the criteria he outlined for deciding when overruling a precedent is appropriate did not rule out the overruling of Roe. […]

To say that Roe is an important precedent, or even a “settled” precedent, is merely stating a truism that does not in itself tell us anything about how a Supreme Court justice will rule on that precedent.

It’s not that Kavanaugh is lying, so much as he’s playing a little rhetorical game. Sure, he sees Roe as “settled,” insofar as previous justices issued a landmark ruling. But the Supreme Court has overruled settled precedents hundreds of times. All it takes is five justices to agree a previous decision was wrong.

And given what we know of Kavanaugh’s record, he wants to be one of those five.