Federal Courts and Nominations

OP-ED: Why Senator Collins Should Be Worried About Justice Gorsuch and Roe

As soon as Justice Anthony Kennedy announced his retirement last week, at least one prominent Court watcher predicted that abortion would be illegal in 20 states within 18 months, and virtually everyone agreed that the future of a woman’s right to choose is in grave danger, with four current Justices likely votes to overrule Roe v. Wade.

Over the weekend, Senator Susan Collins bucked that conventional wisdom, explaining that she doesn’t think that President Trump’s first nominee to the Court, Neil Gorsuch, would vote to overrule that decision.  As she explained, she had a “very long discussion with Justice Gorsuch in my office and he pointed out to me that he is a co-author of a whole book on precedent.”

Senator Collins is right about one thing: during his confirmation hearings, Gorsuch talked a good game about the importance of precedent and the obligations of a good judge to respect it.  Unfortunately for Senator Collins and for all Americans who believe that abortion should remain legal, Justice Gorsuch’s actions in his first full term on the bench are directly at odds with the promises then-Judge Gorsuch made about precedent at his confirmation hearing.

So what did Judge Neil Gorsuch have to say about precedent at his confirmation hearing?  He explained that “[y]ou start with a heavy, heavy presumption in favor of precedent in our system,” that precedent is the “anchor of the law,” and that “precedent is a very important thing.  We don’t go reinvent the wheel every day.”  Elsewhere, he elaborated, “[A]s a good judge, you don’t approach that question anew as if it had never been decided. That would be a wrong way to approach it.”

He discussed with the Senators all of the value that comes with following precedent: “Precedent is kind of like our shared family history as judges. It deserves our respect because it represents our collective wisdom, and to come in and think that just because I’m new or the latest thing and know better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role.”  In other words, precedent, he said, should trump his personal views: “We’re all human beings, but the judge’s job is to put that stuff aside and approach the law as you find it, and that’s part of the precedent of the United States Supreme Court, that I’m sworn as a sitting judge to give the full weight and respect to due precedent.”

To be sure, he acknowledged that “in a very few cases, you may overrule precedent. It’s not an inexorable command,” but he also made clear that he would follow the Supreme Court’s own case law about when it is appropriate to overrule a prior decision of the Court.  He said he would look at factors such as the age of the precedent, the reliance interests that have built up around the precedent, whether it has been reaffirmed over the years, and whether it is workable.  Indeed, he repeatedly identified reliance interests as a “huge part” of the calculus.

And in assuring the Senators that he would follow precedent, he could not have been any clearer.  “I follow precedent,” he said at one point.  At another he said, “The Supreme Court Justice is bound by precedent too.”  And at still a third point, he said, “I will follow the law of judicial precedent in this and in every other area, Senator, it’s my promise to you.”

But what has Justice Gorsuch done in just his very first full year on the bench?  He’s repeatedly rejected and called into question long-standing Supreme Court precedent.

Most obviously, in Janus v. AFSCME, Justice Gorsuch joined with the Court’s other conservatives to overrule a 41-year-old precedent upholding the constitutionality of state laws that allow public sector unions to require non-members to pay their fair share of the costs of collective bargaining.  As Justice Kagan observed in her dissent, “Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis.”  As she explained, the Supreme Court’s own case law about overruling precedent provided no justification for what the majority did in that case: “It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. . . . Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today.”

And Janus was hardly the only decision from last term that made clear that Justice Gorsuch doesn’t always start with a “heavy, heavy presumption in favor of precedent.”  In South Dakota v. Wayfair, a case about whether states can require out-of-state Internet retailers with no physical presence in the state to collect sales taxes on goods sold to consumers in the state, Justice Gorsuch joined the Court’s majority in a 5-4 decision holding that two earlier decisions of the Court—one from 1967 and one from 1992—“should be, and now are, overruled.”  In dissent, Chief Justice Roberts chided the Court’s majority for its rejection of precedent: “This Court ‘does not overturn its precedents lightly.’”

And in Abbott v. Perez, a case in which the Court, 5-4, upheld Texas’s redistricting map, Justice Gorsuch joined Justice Thomas’s one-paragraph concurrence taking the position that the Voting Rights Act “does not apply to redistricting.”  Left unsaid in that paragraph is that that position would require overruling countless Supreme Court cases that have held just the opposite.  Indeed, over 20 years ago, Justice O’Connor, responding to the very same suggestion from Justice Thomas, explained that “stare decisis concerns weigh heavily here,” and that those “concerns require[d] [her] to reject Justice Thomas’ suggestion that [the Court] overhaul [its] established reading of § 2.”  Without either briefing or argument, Gorsuch would have rewritten the Voting Rights Act’s main protection against racial discrimination in voting.

As if all of that were not enough, Justice Gorsuch several times this year indicated that the Court should potentially revisit other of its precedents.  Indeed, in Wayfair, Justice Gorsuch was not content with simply overruling two of the Court’s prior precedents; instead, he wrote separately to signal that he might overrule additional precedents invoked by the majority in a future case: “My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence . . . should not be mistaken for agreement with all aspects of the doctrine.  . . . Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products [of other constitutional principles] are questions for another day.”  In Carpenter v. United States, a case about the Fourth Amendment and cell location records, Justice Gorsuch, in dissent, discussed at length the numerous problems he sees with the Court’s Fourth Amendment precedents and suggested the Court take another path.  In Sveen v. Melin, a case about the Constitution’s Contracts Clause, Justice Gorsuch, in a lone dissent, noted that the “test [established by the Court’s modern cases] seems hard to square with the Constitution’s original public meaning,” and that critics of those cases “deserve a thoughtful reply, if not in this case then in another.”

In sum, Justice Gorsuch may have written a book about the law of precedent, but that didn’t stop him from ignoring the law of precedent in case after case this year.  The point isn’t that Justice Gorsuch was necessarily wrong in every one of these cases—indeed, Supreme Court precedent should sometimes be overruled—but the sheer number of times that he voted to overrule Supreme Court precedents or aggressively called them into question in just one term—belies his repeated promises that he always starts with a “heavy, heavy presumption in favor of precedent.”  Instead, it suggests a Justice who starts with his own views about what the Constitution requires.  And while the Constitution plainly does support a woman’s right to choose, President Trump made clear before he nominated Judge Gorsuch that he would only appoint Justices who were willing to overrule Roe.  So if Justice Gorsuch is going to start with his own views, rather than with precedent, there’s good reason for Senator Collins to be worried.

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