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Progressives, Kavanaugh and the precedent predicament

photo of brett kavanaugh
REUTERS/Chris Wattie
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.

Marshall H. Tanick

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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Comments (11)

  1. Submitted by Paul Udstrand on 09/07/2018 - 08:59 am.

    Please Marshal, I respect your analysis and agree with it, but don’t pretend to understand the progressive mentality.

    You can’t simply substitute one word for another and assume you know what you’re talking about. Progressives have NEVER been satisfied with status quo jurisprudence that simply relies on precedent. Progressive’s long ago recognized the intellectual fallacy of “originalism” and stare decisis. You had to have your head buried in a block of cement for the last 40 years if you thought precedent alone would preserve Roe v. Wade indefinitely against the relentless conservative onslaught. Progressives saw these days coming long ago.

    You are not describing a progressive mentality here. In fact you’re not even really describing a liberal mentality. You ARE simply describing the Democrat i.e. centrist mentality that lived in a fantasy comfort zone with under the false assumption that moderation always prevails. The rest of us have always understood that there is no such thing as settled law in a room where lifetime appointees can decide anything they want… it’s only “settled”… until it isn’t.

    So if one reads your article and substitutes “Democrat” or “centrist/moderate” for “progressive” where it appears, you have a solid article.

  2. Submitted by Paul Udstrand on 09/07/2018 - 10:39 am.

    Not to belabor the point but just to put a finer point on it- it’s important to remember that the whole concept of precedent, or settled law, is essentially a conservative doctrine, not a liberal doctrine.

    Going all the way back to the Age of Reason the liberal mind has always been more willing to abandon or reject precedent, revealed wisdom, etc. The whole point of liberal democracy was to create a form governance ruled by reason instead of doctrine. Liberal mentality is about deploying human intellect, reason, and reliable observation to solve problems, answer questions, and issue rulings.

    The modern progressive mentality is even more devoted to these liberal principles, and more willing if not actually determined to challenge and ignore precedent. Of all of the possible arguments regarding abortion, Second Amendment, campaign finance, immigration… whatever; progressives consider precedence to be the weakest possible argument, in fact the concept of legal precedent is nearly incoherent to the progressive mind.

    I’m taking the time to point this out simply because we’re in the midst of crises. Part of that crises emerges from a political landscape that has tilted so far to the right that many American “liberals” are either completely ignorant regarding the nature of liberalism, or even instinctively hostile to liberal mentalities. It’s important to understand who we’re talking about, and what the different actors actually represent.

    • Submitted by Dennis Wagner on 09/08/2018 - 11:27 am.

      To hop on if I might, Paul and I don’t often agree, however I think he hits the discussion squarely, do we live in the past or adjust to the future? One additional point should also be noted, The future is looking more that this nominee will have been nominated along with his immediate predecessor by a president which likely could be and has already been tied to numerous misdeeds, point being we will have 2 justices nominated by a criminal, and was probably elected by collaborating with a known enemy. Now, how much faith does that put into our supreme court as being fair, balanced, thoughtful and just? Seems pretty clear from this vantage point, returning to the day of white man property owner rule is exactly what this argument is all about, and if it takes the acts of a criminal to do it, the republican party is behind it 100%.

  3. Submitted by Curtis Senker on 09/07/2018 - 06:16 pm.

    Leftists that are tearing their hair out at the impending demise (it is finished) of RoevWade are doing themselves a disfavor.

    When abortion is overturned by SCOTUS, it’s not the end of abortion; it’s the end of abortion among majorities that don’t want it.

    Leftist strongholds will have no trouble passing state laws allowing it. Conservative states will outlaw it, and that my friends is a diversity.

    Who’s against diversity?

  4. Submitted by Jon Kingstad on 09/07/2018 - 08:37 pm.

    This is a good column. I appreciate Mr. Tanick’s views on this topic from his many years of experience in the practice of law.
    I can also say that I appreciate Mr. Senker’s opening on the topic of overturning Roe v. Wade, which he favors (why?). The end of Roe will not mean the end of abortion, as he apparently believes. It will mean the end of “safe and legal abortion” as states (pushed by the “Moral Majority”?) reinstate the criminal penalties for abortion that haven’t existed or been enforced since 1973. Women will still seek and obtain abortions. No matter what the right wing “think tanks” claim, the Alan Gutmacher Institute has proven beyond any doubt that making abortion illegal doesn’t make any change in the number or rate of abortions. Does the “pro-life” minority in this country care? Not as long it does not entail the life of the “innocent unborn”. As Barney Frank once commented, according to the “pro-life movement”, as long a you’re “unborn”, you’re good. Never mind the 8 billion rest of us on this planet who cannot even allow women and men the right to freely choose to bring another life onto a planet which is increasingly running out of the resources to provide for them.

    Who’s against diversity? I’d say who’s against freedom? Mr. Senker and his “pro-life” allies are all about “freedom” apparently, except when it really matters.

  5. Submitted by Dennis Wagner on 09/07/2018 - 09:15 pm.

    Well I’ll say nice try but no Teddy Bear, the real issue is, should we continue to be locked to the “old testament” such as our nominee? The world has and continues to change, and some of us continue to improve our understanding of that changing world, how is it possible to have telecommunications laws, automobile laws, etc. etc. with an “original mentality”? In reference to abortion, I think 1 senator but it very smartly, and what laws do we have relating to men’s bodies? Seems to folks like the nominee, the old testament rules, do we also bring back stoning, as that is the “original-ism” perspective!

  6. Submitted by Paul Udstrand on 09/08/2018 - 08:59 am.

    As far as abortion is concerned Mr. Senker the REAL majority of Americans have always supported abortion rights. It’s always been a very small minority that want to outlaw abortion a again. I think current polling put those who want to restrict or outlaw abortion at around 30%, but whenever anyone really digs in and starts asking real life abortion questions, i.e. medical necessity, rape, severe fetal deformities, or even whether or not women and doctors should be prosecuted, that percentage drops to less than 10%. So no, overturning Roe v. Wade would not a popular decision by a long shot.

  7. Submitted by Paul Udstrand on 09/08/2018 - 09:17 am.

    If the SCOTUS overturn Roe v. Wade, the effect will NOT be to simply toss it back to the states as if turning back the clock to 1972. Even THIS court has to have a rationale for overturning precedent and two basic arguments will provide THAT rationale.

    1) The Constitution does not guarantee the right to privacy that is the foundation of Roe v. Wade. Let me say that again: THIS court would have to rule that US citizens do NOT have a right to privacy. The idea that such a ruling would be a victory for conservative notions of “liberty” and “freedom” is simply incoherent. It would render every woman of childbearing age in the nation a second class citizen, and open everyone else to fantastically intrusive government surveillance.

    2) The second principle that would form the basis of overturning Roe v. Wade would be the belief that fertilized eggs and fetus’s are: “people” who are protected by constitutional “rights”. This principle would be a huge victory for those who believe in big giant government because it would essentially turn pregnant women into public incubators and every fertilized egg in the nation into a ward of the State.

    Anyone who thinks that either of these arguments align well with “conservative” principles let alone liberal principles, is beyond salvation. And anyone who thinks these arguments are supported by any majority of Americans is simply delusional. The drive to re-criminalize abortion is and has always been about re-imposing patriarchal control over women’s bodies, this has nothing to do with legitimate morality or original “intent”.

  8. Submitted by Paul Udstrand on 09/10/2018 - 09:51 am.

    Just to finish my thought, IF the SCOTUS does declare that A) There is no Constitutional right to privacy (This is s standard premise of “Originalism”) and or B) That fertilized eggs and fetus’s are people; It will make much more difficult if not impossible for States to make their own laws governing abortion rights.

    State’s couldn’t simply pass laws conferring privacy, they’d have to amend their Constitutions. No state could take a fertilized egg’s civil rights away once granted by the SCOTUS. This is why overturning Roe v. Wade wouldn’t just turn the clock and toss it back to the states.

    This is why liberal and Democratic complacency regarding the “settled” nature of Roe v. Wade has been damaging. When Democrats weren’t merely being complacent, they were actually enabling abortion restrictions with a combination of ambivalence and neglect.

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