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Kavanaugh on the Importance of Precedent

Stability in the face of division

If you haven’t taken the time to listen to Susan Collins’ speech on Brett Kavanaugh, you might want to carve out some time to do so. If nothing else, it was refreshing to hear someone acting like a United States Senator.

The part of the speech that got my attention was when she talked about “precedent.”

To my knowledge, Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article III of our Constitution itself.  He believes that precedent “is not just a judicial policy … it is constitutionally dictated to pay attention and pay heed to rules of precedent.”  In other words, precedent isn’t a goal or an aspiration; it is a constitutional tenet that has to be followed except in the most extraordinary circumstances.

Let’s get right to it and see how Judge Kavanugh might approach Roe v Wade.

Noting that Roe v. Wade was decided 45 years ago, and reaffirmed 19 years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent.  He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.

The beauty of this thinking is that it keeps the country from being whipsawed from one side to the other on important issues. I know many of you see Roe v Wade as something that needs to be immediately overturned and nothing less will do. On the other hand, I find it comforting in Judge Kavanaugh’s view that the court must take into account how a decision has become ingrained in the culture over time. And, unstated, are the consequences, intended and unintended, from radically shifting the culture in another direction.

Over a long period of time, the court reflects how the culture changes in the country and is a lagging indicator rather than a leading indicator.

Specially with Roe v Wade, my personal preference would be to see the issue returned to the states. However, to do that properly would require not an overturning of Roe v Wade but accepting cases before the Court that would suggest to the individual states that they should begin voting on abortion and incorporating language within their own constitutions — either pro or con. In this way, overturning Roe v Wade at the national level becomes a ripple rather than a tsunami at the state level.

I believe we forget sometimes that the justices live in the same world we do. They see what we see and they have a vision for what the country should look like down the road. They’re also very smart people who want to make sure they don’t cause something to occur that creates civil unrest within the country. It is an awesome responsibility. The concept of “Do no harm” should apply to Justices of the Supreme Court just as it applies to physicians. Perhaps it’s our ability to have confidence in the stability of the country in the face of deep divisions on various issues that is truly one of our great strengths.

Mark Rosneck

Written by Mark Rosneck

Chief Cuck and Bottle Washer

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