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Judge Brett Kavanaugh
Noah Feldman, Tribune News Service
The Supreme Court faces three major problems in our current historical moment: precedent, precedent, and precedent. The big question: will judges restrict abortion rights by setting Roe v. Wade or break the 30-year precedent of Casey vs. Planned Parenthood? To answer that, court observers like myself spend a lot of time reading the tea leaves of even relatively minor Supreme Court rulings. And in that regard, no tea is more important than the one that came in the box labeled Justice Brett Kavanaugh.
On Monday, Kavanaugh joined in a brief statement from Judge Sonia Sotomayor commenting on the court’s decision to deny a case whether women should be required to register for military service. Sotomayor’s opinion is intriguing because it addresses precedents in two different ways. Kavanaugh’s decision to join him with Judge Stephen Breyer is even more intriguing.
Sotomayor’s statement sets a precedent by stating that a law that treats people differently on the basis of gender is unconstitutional under the Supreme Court’s interpretation of the equal protection clause unless the government has “a most persuasive one Justification ”to distinguish the sexes. This doctrine, known to constitutional lawyers as the “intermediate test,” makes it difficult, but not impossible, for Congress or states to pass laws that treat men and women differently.
As the name “intermediate” suggests, the doctrine was a kind of half-victory for women’s rights activists like the then professor Ruth Bader Ginsburg, who litigated in court in the 1970s and 80s. The feminist lawyers wanted the court to strictly control gender discrimination, its highest and toughest form of control. The Burger Court would not go that far and reserve a rigorous test of racial discrimination. Nonetheless, the intermediate exam doctrine proved strong enough to give feminists many of the victories they wanted. As Ian Millhiser notes in a helpful column, the fact that Kavanaugh endorsed an opinion shared by Sotomayor in citing cases that set the mid-term review standard means that he is unlikely to vote to change that standard in the future. With this in mind, he and Sotomayor reaffirmed the precedent.
Sotomayor – and Kavanaugh – therefore strongly suggested that the 1981 precedent should be lifted as circumstances and attitudes changed. The advisory opinion concluded that the Supreme Court does not need to hear the case now, as Congress may amend the law governing the draft, the Selective Service Act, in the near future.
The result, for tea leaf readers, is that Kavanaugh doesn’t just tie in with the long-established precedent of the intermediate exam. It also connects to an argument for lifting the precedent when circumstances have changed.
In April 2020, Kavanaugh wrote a 19-page solo competition in a criminal case explaining when he deems it appropriate for the court to overturn itself. It was clear to all observers that he had a brain abortion.
Now compare this change with the context of abortion law. The realities of biology haven’t changed in a long time – and they certainly haven’t changed since 1973 when Roe was decided. While new medical technology has improved heartbeat detection and viability earlier in pregnancy, these changes do not change the underlying facts. On the other hand, social attitudes towards abortion are in flux.
If Kavanaugh wants to vote to overthrow Roe or rewrite Casey, he will want to rely on strong rationale to break the precedent. The changed circumstances argument is one way he could go. If he does, expect him to quote the Sotomayor opinion that he has just joined.