In a decision on an entirely different subject, Kavanaugh laid out a test for overturning Supreme Court precedents — like the right to an abortion
Justice Brett Kavanaugh may be preparing himself — and the country —for a revolutionary effort to overturn abortion rights precedents. Photo: Jabin Botsford/Bloomberg via Getty Images Amid all the painful memories and dramatic confrontations that enlivened the confirmation hearings on Brett Kavanaugh’s Supreme Court nomination, there wasn’t much question about the single most important underlying issue.
In any event, Kavanaugh is now on the Court, and a decision on the first big abortion rights case is expected to come down this term. Because the Louisiana law in question directly contradicts the last landmark SCOTUS decision on abortion, Whole Women’s Health v. Hellerstedt , and was teed up by anti-abortion activists to serve as a starting-point for the reversal of the broader abortion rights cases , the question Kavanaugh’s respect for precedent will soon be put to the test.
It split 3–1–1–1–3 on thorny disputes over precedent, constitutional interpretation, the Bill of Rights’ protections for noncitizens, and the contemporary relevance of a law’s racist roots. The justices used Ramos to shadowbox over long-running debates, including abortion, giving every court watcher some tea leaves to obsess over. In doing so, they proved once again that the Supreme Court has never been more divided — and that these simmering debates will soon rupture into full public view.
Justice Kavanaugh’s 18-page concurring opinion, which no other justice joined, included a list of 30 of “the court’s most notable and consequential decisions” that overturned earlier rulings — a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v. Board of Education to Citizens United.“Indeed,” he observed, “in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.
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