Progressives, Kavanaugh and the precedent predicament

As U.S. senators take the measure of U.S. Supreme Court nominee Brett Kavanaugh, currently a federal appellate court judge in Washington, D.C.,  progressives (as liberals are wont to call themselves nowadays) and even some conservatives who regard themselves as judicial purists have been intent on getting the high court aspirant to pledge fidelity to following legal precedent. During confirmation hearings this week, senators probed his thinking on the subject.

But they may be asking for something they don’t necessarily want.

Their concern, indeed fear, is understandable; if confirmed, as seems increasingly likely, Kavanaugh may form a quintet of jurists, along with four other sitting justices, that may be poised to overrule settled legal principles underlying reproductive rights in the 1973 Roe v. Wade case establishing women’s constitutional right to abortion. Additional notable rulings of late concerning health care, same-sex marriage, and other important rights may also be imperiled by a five-member majority on the high court dissatisfied with existing legal doctrines.

But progressives often find a slavish adherence to precedent to be, borrowing a phrase from Ralph Waldo Emerson, the “hobgoblin of small minds.” Departing from precedent is, they espouse, essential to give meaning to their view of the Constitution as a “living” instrument whose interpretation must change with new developments over time.

Their view represents the antithesis of the stagnant ”originalist” theory championed by the late Justice Antonin Scalia and the rallying cry of many in the Federalist Society and other groups that have placed their indelible imprimatur on the judicial selection process in the Trump administration.

Gratitude, not gnashing

Progressives and others are understandably gnashing their teeth over the potential reversal of Roe and, perhaps, other Supreme Court rulings. But they ought to be grateful that the doctrine of precedent, formally known as stare decisis, does not necessarily preclude reversing existing legal dogma.

Some of society’s greatest advancements through the judiciary have been the products of reversals of precedent. Notably, Chief Justice Earl Warren’s opinion for the Supreme Court in the Brown v. Board of Education case in 1954 outlawing racial segregation in schools and the avatar for desegregation elsewhere reversed a 58-year-old precedent, Plessy v. Ferguson, which enshrined Jim Crow laws in the South.

Other rulings of the Warren Court applauded by liberals and well accepted today also were reversals of precedent. They include adoption of the Exclusionary Rule in the 1961 case of Mapp v. Ohio barring use of illegally obtained evidence in criminal proceedings, overruling a contrary holding 12 years earlier, and requiring counsel for indigents in criminal cases in the 1963 case of Gideon v. Wainwright overturned a ruling rejecting that claim two decades previously.

More recently, the recognition of same-sex marriage in the Obergefell v. Hodges case three years ago reversed a 41-year-old precedent from a Minnesota case, Baker v. Nelson, deeming the claim not sufficiently “substantial” to warrant judicial scrutiny. That case followed another precedent-shattering decision in 2003, Lawrence v. Texas, that barred criminal prosecution of same-gender sexual relations between consenting adults, just seven years after sodomy laws had been upheld by the high court in the notorious Bowers v. Hardwick case.

Minnesota matters

Minnesota jurisprudence also has experienced reversals of precedent that generally have been acclaimed rather than created anguish.

While it does so much less often than its Supreme Court counterpart, which has over the years reversed about 220 of its own rulings, the Minnesota Supreme Court has occasionally overturned its own prior decisions. Some of those matters have included expanding rights to seek redress and facilitating access to judicial remedies.

A series of rulings running from 1962-1975 are illustrative of this rate, but recognizable precedent-shattering practice. In the first one, the court in Spanel v. Mounds View School District allowed individuals to sue school districts, which previously had been proscribed by legal precedent, and then, based on that ruling, 13 years later, in Nieting v. Blondell, it lifted the long-existing bar on civil tort cases against all state government bodies, a right previously deemed lacking under the age-old doctrine of sovereign immunity dating back to a 1788 British ruling and endorsed by the Minnesota Supreme Court nearly a century later. In fact, the jurists in St. Paul had expressly “declined” to abrogate the venerable doctrine just five years earlier in Johnson v. Callisto, stating that the matter was for elected officials to address, not the judiciary.

But the justices changed their mind in the Nieting case half a decade later due to legislative inaction to “alleviate the hardships” resulting from the immunity doctrine and set it — and its own rulings — aside to conform to “the modern trend in this country.”

In other decisions of that period, the state Supreme Court overturned its own prior decisions on spousal and parental immunity that had long prohibited spouses from suing each other or children bringing civil lawsuits against their parents, barriers that had for many years unjustly prevented recovery of insurance proceeds for injured family members under automobile or homeowners insurance policies.

In another reversal ruling a couple of decades earlier, the state Supreme Court in a 1954 case involving an injured railroad worker in Johnson v. Chicago Burlington & Quincy RR Co., adopted the doctrine of forum non conveniens, a principle allowing parties in civil cases to seek to shift the location of a lawsuit to a more convenient location, a privilege that it had refused to recognize 14 years earlier. The justices justified overruling their own precedent from 1930 on grounds of “the changed conditions of our society.”

In yet another break from precedent, the tribunal in 2000 in Oanes v. Allstate Insurance Co. expanded the statute of limitations for some automobile accident claims under the state’s no-fault insurance law, setting aside no less than four of its own rulings in the previous 14 years imposing a much more restrictive time period on such matters.

While none of these was as stark or dramatic as some of the Supreme Court departures from precedent, they illustrate that existing law occasionally needs to be refurbished to keep up with the times.

Precedent, not people

Following precedent has, to be sure, advantages. It fortifies certainty, stability, and predictability in the law, important features that foster reliance on existing legal doctrines and eschew arbitrary or capricious results. Adherence to settled legal rulings forms a foundation for the principle that the country is, as the saying goes, a nation of laws, not people.

But excessive veneration of precedent can be pernicious, too.

With strict adherence to precedent, schools and most of the rest of society would remain racially divided, illegal law enforcement practices would be unabated, poor people would not have lawyers when charged with criminal offenses, and members of the LGBT community would have limited rights.

So, those who would condemn Kavanaugh — or any other prospective judicial nominee, for that matter — for willingness to deviate from precedent should ponder their predicament; they may be striving for a position that in the future redounds to their detriment.

After all, departures from precedent may be needed in the years ahead to repair the damage caused by onerous decisions of the majority of current and prospective members of the Supreme Court.

Marshall Tanick is a Twin Cities constitutional law attorney and historian.

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