Cherry-picking precedent
by Tom Sullivan
For days this week in the Senate Judiciary Committee hearings, Judge Brett Kavanaugh has cited his regard for precedent in defending his judicial opinions. Yet, confirming a new Supreme Court justice to a lifetime appointment under the precedential circumstances of the Trump administration seems to be a concern neither to Kavanaugh nor to Republicans on the committee.
During Supreme Court confirmation hearings on Wednesday, Sen. Richard Blumenthal (D-Conn.) finally brought up "the elephant in the room." “The president of the United States who has nominated you," he told Judge Brett Kavanaugh, "is an unindicted co-conspirator implicated in some of the most serious wrongdoing that involves the legitimacy of his presidency."
As we have seen in these hearings, there is precedent and then there is precedent.
Hawaii's Mazie Hirono pointed to two Kavanaugh opinions on Thursday which she believed illustrated how Kavanaugh's "ideological viewpoints" influence his rulings. In the Priests for Life case, Kavanaugh decided that filling out a 2-page form placed a "substantial burden" on the religion of employers when it came to providing health insurance covering contraception under Obamacare. Hirono found that defied logic. In Garza v. Hargan, he did not consider it burdensome for the Justice Department to keep a pregnant undocumented minor in custodial detention from obtaining an abortion.
Kavanaugh displays a habit, Hirono said, of "citing law as you wish it to be and not as it is." After suggesting how what he considers an "undue burden" differs in ways that in past opinions weighed against a woman's right to control her reproduction, the Democrat said (video):
Often times, your own perspective, a judge's ideological viewpoints, etc., come into play as to which precedent to apply, how to apply the precedent, and what part of the precedent you want to apply.Kavanaugh, she suggested, cherry-picks his precedents.
Oddly, though, Kavanaugh’s time clock pretty consistently stops at Casey, and he does not ever seem to mention the landmark 2016 decision in Whole Woman’s Health v. Hellerstedt, which not only reaffirmed the core holdings of Roe and Casey, but also significantly bolstered the definition of an “undue burden”—the kinds of speedbumps government may place in the way of a woman seeking to terminate her pregnancy.Kavanaugh's answers when pressed revert to standard say-nothing evasions and selective citations that support his respect for his preferred precedent. Lithwick and Stern argue the nominee's refusal to cite Whole Woman’s Health and Obergefell during these hearings takes "this cherry-picking to a new level."
In Whole Woman’s Health, Justice Breyer, writing for a five-justice majority, struck down several Texas abortion restrictions on clinics in the state, explaining that the undue-burden standard demands that courts consider “the burdens a law imposes on abortion access together with the benefits.” A law whose burdens outweigh its benefits cannot pass constitutional muster. Post–Whole Woman’s Health, it became clear that courts must assess whether an abortion restriction furthers any valid government purpose, rather than merely defer to a state’s vague claims that any justification sought for such a restriction is reasonable. For the first time and in important ways, the mushy “undue burden” test laid out in Casey had real teeth.
As University of California–Irvine law professor Leah Litman has explained, courts that have sought to erode that test in the years since Whole Woman’s Health have used all sorts of tricks and devices to pretend that the undue-burden test was some vaporous thing into which all the hopes and dreams of abortion opponents could be packed. In some instances, they have managed to distinguish or mischaracterize it. But in his notorious dissenting opinion in Garza v. Hargan, Kavanaugh simply ignored it. In a move that looks familiar after this week, he cited Roe and Casey and a slew of cases about parental consent. But the directive in Whole Woman’s Health—that reviewing judges take seriously the burdens placed before women and reckon with the asserted interests proffered by the government—went wholly ignored. Why, one might ask, does this case not enter into the pantheon of Roe and Casey, becoming, for all intents and purposes, precedent on precedent on precedent? Perhaps because it doesn’t strike Kavanaugh as “settled law.” Or perhaps because reverse-engineering Casey has become the roadmap to effectively ending legal abortion in the United States.