Kavanaugh’s Unsettling Use of ‘Settled Law’

The Supreme Court nominee’s judicial record suggests he means only that Roe v. Wade hasn’t yet been overturned, not that it can’t be.

Joshua Roberts / Reuters

Senator Susan Collins of Maine reported that President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, had assured her that Roe v. Wade, the 1973 case affirming a woman’s constitutional right to choose abortion, was “settled law.” The implication was that Collins, who has indicated support for a right to choose, could vote for his confirmation without worrying about Roe or women’s reproductive rights.

Does it mean that? I haven’t been able to find a clear definition of the term, but in 1976, Justice John Paul Stevens wrote, “The Court seldom takes a case merely to reaffirm settled law.”

So maybe there’s a functional definition. “Settled law” means law the Court hasn’t decided to overturn just yet.

Do reproductive rights fall into that category? Consider a recent abortion-rights decision by the Eleventh Circuit. West Alabama Women’s Center v. Williamson is a challenge to a state law banning a safe, common method of second-trimester abortion, which physicians call “dilation and evacuation.” Under Supreme Court precedent, the law is flatly unconstitutional. Here’s how Ed Carnes, the chief judge of the Eleventh Circuit, explained his apparently grudging decision to follow that precedent: “Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion. If so, what we must apply here is the aberration.” For the rest of the opinion, Carnes waxed eloquent in his distaste for the challenged procedure, which he called “dismemberment abortion.” Then, between clenched teeth, he concluded, “In our judicial system, there is only one Supreme Court, and we are not it. As one of the ‘inferior Courts,’ we follow its decisions.”

In a concurrence, Senior Judge Joel Edward Durbina added, “I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.”

Overall, the tone is that of Henry II contemplating ecclesiastical opposition: “Will no one rid us of this pestilent precedent? When will the Supreme Court get rid of it?” (The third member of the panel, District Judge Leslie Abrams, dissociated herself from the court’s reasoning: “I concur in the judgment only.”)

That Oh, please, do I have to? echoes in Brett Kavanaugh’s sole opinion on the issue of choice, a 2017 dissent in Garza v. Hargan. That case concerned an underage woman from Central America apprehended at the southern border of the United States. After Customs and Border Protection took her into custody on a charge of illegal entry, she discovered she was pregnant. She requested access to an abortion. She obtained a state court order that she was fit to make that decision for herself—no easy task in a red state like Texas—and the pre-abortion counseling from a physician required under state law.

Had she been a convict in federal prison, there would have been no further question. But as an unaccompanied minor, she was being held by the Department of Health and Human Services. Under new Trump-administration policies, HHS claimed the power to block her from leaving custody unless she obtained an approved sponsor to whom she could be released. Otherwise, the government argued, allowing her to exercise her right to choose would require the government to “facilitate” abortion.

In front of the D.C. Circuit, the government said it should be allowed to continue to search for a sponsor for two more weeks; attorneys for the woman warned that further delay might push her outside of the zone in which abortion was legal at all. The court’s en banc majority held that once the woman had complied with state law, the federal government’s opposition to abortion did not give it the power to block her from obtaining one, sponsor or no.

The dissent, however, might have been headed “Kavanaugh, J., rolling eyes.”

Kavanaugh’s tone is not anti-abortion; instead, he talks about the issue as if it were some incomprehensible and extraneous bit of nonsense being imposed on the court and the government by something called “Supreme Court precedent.” Readers can easily infer what Kavanaugh believes about abortion and the cases that protect the right to choose, but Kavanaugh won’t tell. Engaging the issue directly might have put a future Supreme Court nomination in jeopardy. An overarching commitment to protecting his own viability seems to me one of the keys to understanding Kavanaugh’s jurisprudence.He would say only that “all parties have assumed … that unlawful immigrant minors such as Jane Doe have a right under Supreme Court precedent to obtain an abortion in the United States.” He made no attempt to see the case from her point of view, or to stipulate that a young woman has an interest in making her own decisions. The government wanted her to make a different decision; the court should have stayed out of it and let the bullying continue.

Kavanaugh would not even admit that if the court granted the government the 11 days it was seeking, the government would then be required to allow the abortion. “It could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion,” he wrote, “depending on what arguments the Government can make at that point.”In other words, let the government stall another week or two, and then let it think of brand-new reasons to stall.Aggression doesn’t come much more passive than that: Supreme Court precedent? Well, we’ll just have to see about that, now won’t we?

This is how Kavanaugh treats what he calls “settled law.” Imagine what “unsettled law” is like.

The then-professor Elena Kagan once said the Supreme Court–confirmation process consists largely of “vacuity and farce.” Seldom has it seemed quite so farcical as in 2018. Kavanaugh’s supporters are rushing the nomination through for explicitly political reasons, while piously accusing Democrats of being partisans. Kavanaugh’s supporters are solemnly assuring the nation that nothing will change once he takes the bench. Meanwhile, they are signaling the Republican base that it will change everything.

The entire point of the Republican takeover of the judicial-confirmation process—blockading the Court until a Republican president took power, centralizing appeals-court appointments in the White House, and now jamming through the Kavanaugh nomination while withholding the documents needed to review it—is to bring radical, rapid, intensely partisan change in the constitutional order. This isn’t even a matter of hints; it is an explicit promise rendered by the Republican Party as a whole, from President Trump down to voter guides handed to worshipers in the pews.

Expect to hear heartfelt paeans to precedent this week. Roe v. Wade? Bless its heart. Stare decisis? Love it to death. Settled law? Isn’t it fantastic?