Kavanaugh Charting Vote to Overrule Roe v. Wade?

      Evangelisto Ramos, convicted of murder and sentenced to life in prison in Louisiana four years ago, won a new trial from the U.S. Supreme Court last week [April 20] in a decision that civil liberties advocates would ordinarily be cheering. But instead the legal left is viewing the decision warily because of a concurring opinion by Justice Brett Kavanaugh that looks like his road map for voting to overrule the Roe v. Wade abortion rights decision when he gets the chance.

      Ramos was convicted in the stabbing death of a female acquaintance after a two-day trial on evidence so shaky that two of the twelve jurors voted not guilty. At the Supreme Court, Justice Neil Gorsuch noted that the 10-2 jury vote would have resulted in a mistrial in all but two of the fifty states, all except Louisiana and Oregon. Gorsuch led an ideologically diverse five-justice majority in overruling the Court’s prior decision allowing non-unanimous jury verdicts in criminal cases in state courts though not in federal courts.

      In reversing the earlier decision, Apodaca v. Oregon (1972), Gorsuch cited the dissenting opinions in that case joined by such liberal lions as William Douglas, William Brennan, and Thurgood Marshall. The new decision came as no surprise and, in some sense, Gorsuch — the only justice to describe himself publicly as a “committed” originalist — was the one to write it.

      Gorsuch channeled not the Warren Court sensibilities of protecting criminal defendants, but James Madison’s views in writing trial by jury into the Bill of Rights. Madison and the states that ratified the Sixth Amendment, Gorsuch reasoned, all understood the right to trial by jury to adopt the practice of jury unanimity inherited from English common law.

      The Supreme Court had the same understanding about jury unanimity in criminal cases, Gorsuch explained, until the “strange turn” that it took in the 1972 decisions. The Court divided 4-1-4 in letting Louisiana and Oregon use 10-2 verdicts in criminal cases after they adopted those “unconventional schemes,” respectively, in 1898 and 1934. The pivotal vote came from Justice Lewis F. Powell, the only justice who thought the Sixth Amendment could have a different meaning in state than in federal courts.

      Gorsuch and Kavanaugh, President Trump’s two appointees on the Court, both won confirmation after professing due regard for the doctrine of stare decisis, with its deference to past decisions. Three decades earlier, Clarence Thomas made the same obeisance to precedent to win confirmation, but began within his first few months on the bench his now common practice of voting or calling for reversing prior decisions based solely on his superior understanding of constitutional law.

      To show his bona fides, Gorsuch performed a sleight of hand: the prior decisions “lacked precedential effect,” he explained, because of the odd lineup. Kavanaugh joined but felt impelled to lay out his reasons for voting to overturn 48-year-old precedents despite stare decisis. A prior decision, he explained, must be “not just wrong but grievously or egregiously wrong.” In addition, the prior decision must have produced “significant negative jurisprudential or real-world consequences.” And, as a third consideration, the question must be asked whether overruling the precedent would “unduly upset reliance interests.”

      In several Supreme Court skirmishes on abortion rights so far, Kavanaugh has shown himself to be no fan of women’s right to choose. Thus, he voted to uphold the Trump administration’s efforts to prevent a pregnant Central American teenager from getting an abortion while in custody after crossing the border illegally. When he votes to overrule Roe v. Wade, no one but Maine’s Republican senator Susan Collins will be the least bit surprised. It will be no reach at all for Kavanaugh to check his three boxes before casting aside the 1973 precedent that the Rehnquist Court voted to reaffirm in 1992 after full-dress reconsideration.

      Kavanaugh is successor to Anthony  Kennedy, one of the three Republican-appointed justices who cast the pivotal votes to save Roe in that decision, Casey v. Planned Parenthood. In their joint opinion, Kennedy, Sandra Day O’Connor, and David Souter explained that generations of American women had come to rely on the right to choose in ordering their professional and personal lives. That is precedent, but perhaps in Kavanaugh’s mind mere dictum.

      Gorsuch showed himself in his first term to have no qualms about overruling prior decisions by joining in the 5-4 decision in Janus v. AFSCME (2018) to overturn an important 40-year-old precedent for public employee unions. For Kavanaugh, his vote in Ramos represents his first to reverse a prior decision and perhaps the precedent he needs to justify his next.  

       The question remains whether Chief Justice John G. Roberts Jr. wants to be remembered for presiding over a 5-4 decision to leave women’s reproductive rights to the mercies of Republican legislators in red states eager to reduce those rights to practical insignificance. The Court is already considering in a pending case, Russo v. June Medical Services, a Louisiana law that effectively reduced the state to a single abortion clinic.

      In oral arguments, Roberts and Kavanaugh both seemed to be reaching for a rationale to uphold the Louisiana law even though identical to a Texas law that the Court struck down two years earlier. Thus, the showdown on abortion rights may still be yet to come, but Kavanaugh has given cause for concern to those who expect him to vote no as soon as he can.