Abortion rights: Supreme Court considers overruling several lesser precedents. Could Roe v. Wade be affected?
WASHINGTON – Back when Brett Kavanaugh's Supreme Court nomination appeared to hinge on his legal views, senators concerned about the future of abortion rights pressed him on the sanctity of Supreme Court precedents. His practiced responses were intended to be reassuring.
"Precedent is a foundation of our system," Kavanaugh said. He called the court's Roe v. Wade decision in 1973 that legalized abortion nationwide "a precedent that's been reaffirmed many times over 45 years." As such, he said, it constituted "precedent on precedent."
But the Supreme Court overruled two major precedents in June, on public employee union fees and internet taxes. Wednesday, the justices considered toppling another on private property rights. Within the next few months, they'll tackle two others, including a major decision that permits federal and state prosecutions for the same crime.
The high court's willingness to overrule itself may not indicate greater risk for Roe or other precedents relished by liberals or conservatives. But it demonstrates that at least some justices – particularly the court's conservatives – are eager to right what they view as past wrongs.
"The Supreme Court could overrule all three of these cases," said Paul Clement, a former U.S. solicitor general who has argued about 90 cases before the court.
Since Chief Justice John Roberts took the center seat on the court in 2005, the justices have been reluctant to second-guess the decisions of their predecessors. They have done so slightly more than once a year, the slowest pace in more than 50 years.
The court usually adheres to the principle of stare decisis, or adhering to its earlier decisions. But occasionally, those earlier rulings cry out for change, such as Plessy v. Ferguson, which upheld separate public facilities on the basis of race. It stood for 60 years before being overruled by Brown v. Board of Education in 1954.
Wednesday's debate focused on a rural Pennsylvania property that includes an old burial ground. The township required the landowner to provide public access, but she refused.
The precedent at stake dates to 1985, when the court ruled that property owners must go through state courts before taking their claims for compensation to federal court under the Fifth Amendment. Within minutes, conservative justices were on the warpath.
"You have taken her property, and you have denied her compensation," Associate Justice Samuel Alito told Teresa Ficken Sachs, representing the Pennsylvania township. "Why is that not a violation of the takings clause?"
Associate Justice Stephen Breyer cautioned that the original case "was decided 32 years ago. This is a very complicated area of law. Why not let sleeping dogs lie?"
Within months, the court will consider overruling a precedent from 1959 that allows for dual state and federal prosecutions. The court reasoned then that although double jeopardy is unconstitutional, the state and federal governments are separate sovereigns and can bring separate cases.
The precedent has been "something of an insurance policy for prosecutors," says Kannon Shanmugam, an appellate lawyer who argues frequently at the high court. It allowed the federal government to successfully prosecute Los Angeles police officers in the beating of Rodney King in 1991, as well as a South Carolina police officer for the fatal shooting in 2015 of Walter Scott after unsuccessful state efforts. As such, it represents "a very, very important tool," says Sherrilyn Ifill, president of the NAACP Legal Defense Fund.
Striking down the precedent could affect current or future prosecutions in the investigations of Russian interference in the 2016 elections. If President Donald Trump were to pardon associates convicted by special counsel Robert Mueller or federal prosecutors, separate state prosecutions could be jeopardized.
The third precedent in question dates to 1979, when the Supreme Court ruled that states are not immune from being sued in other states' courts. Like the property rights case, it could split the conservative and liberal justices down the middle.
"The only interesting question is whether there will be a ninth justice to hear it," Clement said.
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