There can be no dispute that Brett Kavanaugh’s answers to Senate Judiciary Committee questions have been well rehearsed. As many committee members have observed, his answers to the senators’ subject area–specific questions are so intentionally generic that they can be repeated, in toto, at least three area codes away.
But while it’s easy to become hyperfocused on the case names Judge Kavanaugh pulls out time and time again—Hamdan, Youngstown, Morrison, Nixon, etc.—there is a good deal we can learn from the case names Kavanaugh fails to cite, even when they are building blocks of the doctrine he is describing. Indeed, Judge Kavanaugh’s unnamed cases have proved to be almost as revealing as the decisions he continues to invoke. In at least two crucial areas—abortion and marriage equality—it’s clear that his refusal to acknowledge important precedent tells us almost as much as the cases he can discuss.
In the abortion context, Kavanaugh has insisted that he understands the “real-world” concerns of the groups that worry about Kavanaugh’s record as well as Donald Trump’s promise to seat a justice who would end abortion rights. Senators have questioned him at length about some of his tells, including his use of the phrase abortion on demand; in a colloquy Thursday with Ted Cruz, the nominee also referred to contraception as “abortion-inducing drugs.” We also learned Thursday that in a memo Kavanaugh wrote in 2003, he acknowledged that the Supreme Court “can always overrule” Roe v. Wade, despite his claims that it represents settled law. “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level,” he wrote, “since Court can always overrule its precedent,” adding that some conservative justices then on the court “would do so.”
Nevertheless, Kavanaugh has sought to reassure senators that he isn’t apt to mess with Roe: “As a general proposition, I understand the importance of the precedent set forth in Roe v. Wade,” Kavanaugh told Democratic Sen. Dianne Feinstein on Wednesday. “It has been reaffirmed many times over the past 45 years.” He elaborated, repeatedly referencing 1992’s Planned Parenthood vs. Casey, a case that he routinely cites when he talks about Roe as “settled law.” As he explained it to Feinstein on Wednesday, “Casey specifically reconsidered [Roe], applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
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 speed bumps government may place in the way of a woman seeking to terminate her pregnancy.
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 road map to effectively ending legal abortion in the United States.
Kavanaugh pulled a similar trick on Thursday in a colloquy regarding unenumerated rights with Republican Sen. John Kennedy. The Fifth and 14th Amendments bar the government from depriving any person of “life, liberty, or property without due process of law,” and the Supreme Court has long held that this constitutional liberty encompasses certain fundamental rights. In Casey, for instance, the court affirmed that a women’s ability to terminate her pregnancy pre-viability is “implicit in the meaning of liberty” under the Constitution.
When Kennedy asked Kavanaugh how the court determines which rights are protected under the Due Process Clause, the nominee cited not Casey but 1997’s Washington v. Glucksberg. In that decision, the Supreme Court had ruled that physician-assisted suicide is not a constitutional guarantee. The court declared that only those unenumerated “rights and liberties” that are “deeply rooted in this Nation’s history and tradition” receive protection. And because states have, for centuries, prohibited doctors from hastening a patient’s death, they may continue to do so today.
Glucksberg purported to announce a restrictive, backward-looking test for fundamental rights analysis. Yet just a few years later, in 2003’s Lawrence v. Texas, the court struck down “sodomy” bans under the Due Process Clause—and failed to cite Glucksberg even once. Instead, the court deployed a more progressive analysis, declaring that “times can blind us to certain truths,” and that “persons in every generation can invoke [the Constitution’s] principles in their own search for greater freedom.” As Justice Antonin Scalia noted accurately in his dissent, Lawrence significantly eroded Glucksberg’s cramped conception of liberty.
Twelve years later, in Obergefell v. Hodges, the court struck down same-sex marriage bans—and expressly limited Glucksberg to its facts, effectively neutering its stingy due-process test. While Glucksberg’s history-based approach “may have been appropriate” for “physician-assisted suicide,” the court wrote, “it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” It continued:
If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians.
Writing in Slate at the time, NYU School of Law professor Kenji Yoshino described these passages as “a wholesale attack on Glucksberg’s formulation.” The notion that only those liberties “deeply rooted in history and tradition” are protected by the Constitution, Yoshino concluded, was quickly becoming a “bare remnant of abandoned doctrine.”
And yet, on Thursday, that doctrine is precisely what Kavanaugh cited as the test to determine which enumerated rights receive constitutional safeguards. (He also praised it in a 2017 speech and told Republican Sen. Ted Cruz on Wednesday that “all roads lead to Glucksberg.”) The court’s approach to these fundamental rights, he declared, “is reflected now in the Glucksberg test.”
No, it isn’t. It’s reflected in Obergefell, which is resolutely forward-looking, compelling judges to consider the “new insights” of “future generations” to protect “the right of all persons to enjoy liberty as we learn its meaning.” Yet Kavanaugh declined to mention this ruling, except when he refused to tell Democratic Sens. Kamala Harris and Chris Coons whether he thought it was correctly decided. When Coons called out Kavanaugh for elevating Glucksberg above Obergefell, the nominee responded that Elena Kagan had also cited Glucksberg favorably during her confirmation hearing. That’s a non sequitur, since, at that time, the court had not decided Obergefell and, in the process, disavowed Glucksberg.
It’s already painfully clear that Kavanaugh manipulates precedent to expand the reach of decisions he likes (like pro-gun rulings) while smothering decisions he opposes (like Casey). Indeed it’s well-known that he has cited dissents when they serve his purposes. But the nominee’s refusal—throughout his hearings—to acknowledge the impact of Whole Woman’s Health and Obergefell on his analysis of the law takes this cherry-picking to a new level. It’s one thing to be poised to take us back to a time before these seminal cases were even decided. It’s affirmatively shocking to pretend that they are already wiped off the books.
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