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What does Brett Kavanaugh think of precedent? Here’s another clue

The Supreme Court faces three major issues in our current historical moment: precedent, precedent and precedent. The big question: Will the justices limit abortion rights by overturning the 50-year precedent of Roe v. Wade or the 30-year precedent of Casey v. Planned Parenthood? To try to answer it, court watchers like me spend a lot of our time reading the tea leaves of even relatively minor Supreme Court opinions. And on this issue, no kind of tea is more important than the one that comes in the box labeled Justice Brett Kavanaugh.

On Monday, Kavanaugh joined a short opinion by Justice Sonia Sotomayor in which she commented on the court’s decision to decline a case about whether women should have to start registering for the military draft. Sotomayor’s opinion is intriguing because it addresses precedent in two different ways. Kavanaugh’s decision to join it, along with Justice Stephen Breyer, is more intriguing still.

Sotomayor’s opinion first engages precedent by noting that under the Supreme Court’s interpretation of the equal protection clause, a law that treat people differently on the basis of sex is unconstitutional unless the government has “an exceedingly persuasive justification” to distinguish the sexes. This doctrine, known to constitutional lawyers as “intermediate scrutiny,” makes it difficult but not impossible for Congress or the states to enact laws that treat men and women differently.

As the name “intermediate” implies, the doctrine was a kind of semi-victory for women’s rights lawyers like then-professor Ruth Bader Ginsburg when they litigated cases before the court in the 1970s and 80s. The feminist lawyers wanted the court to apply strict scrutiny, its highest and toughest form of scrutiny, to sex-based discrimination. The Burger court wouldn’t go that far, reserving strict scrutiny for discrimination on the basis of race. Nonetheless, the intermediate scrutiny doctrine turned out to be strong enough to give feminists many of the victories that they wanted.

As Ian Millhiser notes in a helpful column, the fact that Kavanaugh joined an opinion by Sotomayor in which she cites cases establishing the intermediate scrutiny standard means he’s unlikely to vote in the future to change that standard. In that sense, he joined Sotomayor in reaffirming precedent.

But that’s only half the story. In the opinion, Sotomayor also criticized a Supreme Court precedent: the 1981 decision Rostker v. Goldberg in which the justices upheld the exclusion of women from registering for the draft and said it didn’t violate equal protection because women were “excluded from combat” and wouldn’t be needed in a draft in the event of war. Since 1981, Sotomayor wrote, “the role of women in the military has changed dramatically.” Women now serve in combat in a wide range of roles.

Sotomayor — and Kavanaugh — were therefore implying strongly that the 1981 precedent should be overturned because circumstances and attitudes have changed. The opinion concluded by saying that it wasn’t necessary for the Supreme Court to hear the case now, because Congress might change the law that governs the draft, the Selective Service Act, in the near future.

The upshot for tea-leaf readers is that Kavanaugh isn’t just associating himself with the long-established precedent of intermediate scrutiny. He’s also associating himself with an argument for overturning precedent when circumstances have changed.

In April 2020, Kavanaugh wrote a 19-page solo concurrence in a criminal case explaining when he thinks it’s appropriate for the court to overturn itself. It was obvious to all observers that he had abortion on the brain.

In that concurrence, Kavanaugh mentioned “changed facts” as a reason to overrule precedent. On the surface, supporters of a living Constitution are likely to agree that changes in how the world works should sometimes justify changing precedent.

Where things get complicated is deciding which changes in social facts should matter. Yes, women today participate in combat. But what’s really changed is our beliefs about whether women should be able to participate in combat. The changed social reality is a consequence of changed social attitudes.

Now compare that change to the context of abortion rights. The realities of biology haven’t changed for a very long time — and they certainly haven’t changed since 1973, when Roe was decided. While new medical technology has moved heartbeat detection and viability earlier in pregnancy, those changes don’t change the underlying facts. On the other hand, social attitudes about abortion have been in flux.

If Kavanaugh wants to vote to overturn Roe or re-write Casey, he will want to rely on a strong justification to go against precedent. The argument from changed circumstances is one road he could travel. If he does, expect him to cite the Sotomayor opinion he just joined.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.” Distributed by Tribune Content Agency.

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