Slate’s Mark Joseph Stern on Brett Kavanaugh, Anthony Kennedy, and Roe v. Wade.

Mark Joseph Stern on Why Brett Kavanaugh Won’t Overturn Roe v. Wade Outright

Mark Joseph Stern on Why Brett Kavanaugh Won’t Overturn Roe v. Wade Outright

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July 11 2018 4:59 PM

How Kavanaugh Will Slowly Kill Roe v. Wade

Slate’s Mark Joseph Stern on Trump’s Supreme Court justice nominee and the legacy of Anthony Kennedy.


Photo illustration by Slate. Photo by Alex Edelman/Getty Images, Chip Somodevilla/Getty Images.

Justice Anthony Kennedy gave liberals quite a shock last month when he announced his retirement from the U.S. Supreme Court, paving the way for Donald Trump to nominate his second justice in just the first 18 months of his presidency. This week, Trump officially chose Brett Kavanaugh, a 53-year-old judge on the U.S. Court of Appeals for the District of Columbia Circuit.

In this Slate Plus members-only podcast, Chau Tu talks to Slate legal writer Mark Joseph Stern about the likelihood of Kavanaugh’s confirmation, whether progressives should be worried about the reversal of Roe v. Wade, and why this latest SCOTUS term won’t be the worst we’ll see for a while.

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This transcript has been edited and condensed for clarity.

Chau Tu: So it’s obviously been a crazy few weeks in legal news. But let’s start with the biggest and latest news right now, which is the announcement of Trump’s nominee to take over Anthony Kennedy’s seat as Supreme Court justice. Can you tell us a little bit about Brett Kavanaugh and what your perception of him is right now?

Mark Stern: Yeah, so Brett Kavanaugh currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, which is one step below the Supreme Court and hears a lot of litigation against the federal government. Very important court. If confirmed, he would be, I believe, the fourth justice to have been elevated from the D.C. Circuit up to the Supreme Court. He has sat on that court since 2006. He’s very experienced, he has a wonderful Yale pedigree: He went to Yale for undergrad and law school.

He has a lot of backers among the D.C. Republican and legal establishment because he’s been a fairly jocular and amicable figure on the D.C. Circuit. There are a number of conservative judges who alienate their colleagues by being really dyspeptic or staking out these obnoxious positions or being unduly confrontational. Kavanaugh is not one of those people. He’s widely known as a friendly guy. And he has maintained a staunch conservative voting record on the D.C. Circuit but he has not gained a reputation as just a total bomb-thrower.

He’s definitely to the right of any Democratic nominee. He is extremely conservative and, as I said, a good friend of the Republican establishment. But I think it would be difficult for Democrats to pin him down as especially radical. He does represent more or less the median of conservative jurists on the federal bench today.

So you think that it will be an easy confirmation?

Well, not necessarily. It depends on almost entirely on what Republicans Susan Collins and Lisa Murkowski have to say about him. These two women are, of course, the pro-choice Republicans in the Senate and they recognize that Justice Kennedy was the fifth vote to preserve Roe v. Wade and Planned Parenthood v. Casey, which are the Supreme Court decisions enshrining a constitutional right to abortion access for women in the U.S. Now Kennedy is gone and Kavanaugh is set to replace him. That gives Kavanaugh a prime opportunity to do what Kennedy never quite could and vote to overturn Roe and Casey, return abortion back to the government, and allow states to ban it outright.

Collins and Murkowski, however, have not been very clear on what their criteria are for Kavanaugh or any other nominee. They’ve said, “well we want a nominee who respects precedents,” but that doesn’t mean much when you’re dealing with the Supreme Court hearings because the nominee in recent times has almost always said, well I can’t comment on specific cases because that would be improper. It seems right now that Collins is going to let that slide for Kavanaugh and is going to say he seems to respect precedent, and he’s a qualified jurist, so I’ll give him my vote. That suggests to me that she’s not interested in really grappling with the possibility that he would overturn Roe. And so I think he has a pretty clear path to 50 votes in the Senate.

I see. And so you brought up Roe v. Wade, which is a big concern ever since Kennedy announced his retirement. How realistic is it that this will get overturned?

It will almost certainly be reversed in practice. The big question is whether the court will just go out there and say we are overturning this outright, Roe was wrong when it was decided, it is wrong today, we are chucking it into the dustbin of history; or whether the court will play this kind of disingenuous game where it pretends to adhere to Roe, pretends to uphold Roe and a woman’s right to abortion access but in actuality guts that right to the point that it is nonexistent.

And this is a game that Kavanaugh himself has played in his current job on the D.C. Circuit. So Kavanaugh heard this case in which the Trump administration was trying to prevent an undocumented minor from terminating her pregnancy. And the court ended up ruling that the administration had to let this 17-year-old get an abortion. But Kavanaugh dissented and he said, “No, no, no, no, no. It’s not a real burden on her constitutional rights to prevent her from getting this abortion,” when instead the government could keep delaying her abortion, keep delaying the procedure, try to find a sponsor who might let her get an abortion and play these waiting games that would effectively run down the clock to the point that this minor could no longer legally terminate her pregnancy.

So what Kavanaugh basically wanted to do there was use these delaying tactics, or allow the government to use these delaying tactics, that would have in reality prevented this young woman from getting an abortion while pretending to adhere to Roe and saying, well we’re just applying the law. And that is what I think the court may well do when Kavanaugh’s joined it and it gets a case about abortion. It’s going to say, “Well we’re adhering to Roe, but Roe says that there’s some room for regulation and this doesn’t pose an undue burden on abortion because say a woman could still cross state lines and travel to another state to get an abortion or the woman should have tried to get an abortion earlier.” Or something like that. So you’ll see this sort of carving away, chipping away at what Roe really means until it’s been rendered entirely meaningless. And then at that point the court can say, “Actually Roe has been overturned in practice so let’s go ahead and acknowledge we are killing off Roe v. Wade altogether.”

Yeah. Wow. You wrote about this case in Iowa recently that was actually a big victory for abortion rights advocates, right? So what happened there? Can you describe that?

Yeah so it’s interesting—we’re very used to hearing about abortion as a federal constitutional issue, right? Whether the federal Constitution enshrines a right for all women in the country to terminate a pregnancy. But we often forget that every single state has its own constitution. And many of those state constitutions have protections that are similar to the federal Constitution or even go beyond the federal Constitution in terms of guaranteeing residents autonomy, liberty, and equality.

And so this Iowa case, it’s interesting. It was litigated not under the federal Constitution but under the Iowa Constitution, which guarantees everyone a right to equal protection, a right to liberty. And the Iowa Supreme Court is a fairly left-leaning institution. It’s actually a majority-Republican court, but it has a long history of leaning to the left on social justice issues. So for instance, the Iowa Supreme Court ruled that racial segregation in education is illegal 86 years before the Supreme Court did in Brown vs. Board of Education. And the Iowa Supreme Court ruled that its state constitution protects same-sex couples right to marry years before the U.S. Supreme Court did.

And here the Iowa Supreme Court once again kind of went beyond what the U.S. Supreme Court has said and said, “Well, regardless of what the federal Constitution protects, the Iowa Constitution clearly guarantees women a degree of bodily autonomy that protects their right to terminate an unwanted pregnancy.” And remarkably the court actually went beyond what the U.S. Supreme Court has said here and said even mandatory waiting periods, these delays that women are supposed to use to mull whether they truly want an abortion, those are unconstitutional under the Iowa Constitution because they are infringing on a woman’s right to choose in a manner that’s totally unjustified by any compelling interest.

And so what the Iowa decision shows is that if and when Roe is overturned, litigants should be turning more toward their state courts and state supreme courts, and suing under their state constitutions, and focusing on their state supreme courts. Many state supreme courts in the United States are elected. This could be a kind of alternate track for progressives eager to protect reproductive rights. If they start losing in the federal judiciary, they need to turn to the state courts and start figuring out how to litigate claims under their state constitutions.

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That’s a really good point. So now let’s return to why we were talking about Kavanaugh: Justice Anthony Kennedy is retiring. So what do you think about the timing of his retirement? And what do you think will be his legacy overall?

Well it’s a very difficult question because you know Kavanaugh has played very coy on a number of issues where Kennedy staked out a bold position, most notably on gay rights. We haven’t seen Judge Kavanaugh say very much at all on the subject of same-sex marriage, marriage equality, gay rights. And that of course is kind of the centerpiece of Justice Kennedy’s legacy. He provided the fifth vote to guarantee a right to same-sex marriage throughout the country and guaranteed same-sex couples rights to engage in intimacy without the police arresting them and prosecuting them. These are rulings that could theoretically be imperiled by Justice Kennedy’s retirement because the conservatives vigorously dissented from them.

Now, I don’t know if Kavanaugh’s eager to revisit the gay rights cases as much as he is clearly eager to revisit the abortion cases. But if he is, then Justice Kennedy’s legacy is going to be that he stepped down at a time that allowed his successor to overturn his landmark rulings. We will not remember Justice Kennedy as the man who wrote the opinion enshrining a right to equal dignity for same-sex couples into the Constitution. We will remember him as the guy who did that and then bolted three years later, allowing Donald Trump to name a successor who was always very likely to reverse course on gay rights.

So the legacy of Justice Kennedy is a question mark. We don’t know. We’re not going to know for a little while but we do know that the rulings that liberals often celebrate of his, those are very much at risk and may go by the wayside over the next few years.

So now that it’s come to an end, how would you rate this latest SCOTUS term? Especially it being Neil Gorsuch’s first official one, right?

Yes. This was the first term during which Neil Gorsuch sat the entire time; he served at the end of last term but was seated throughout this entire term.

It was a really bad term, and this is the worst part: It’s probably going to be the least bad term for a very long time. Justice Kennedy, who is usually the swing vote, did not swing to the left on a single case this term. He did not join the liberals in a 5–4 ruling at all. Chief Justice John Roberts joined the liberals more frequently than Justice Kennedy in fact, and Roberts is a staunch conservative.

We saw the court issue these kind of compromised rulings in cases like Masterpiece Cakeshop where the court sidestepped the question of whether baking a cake for a same-sex couple is an act of free speech that the government cannot compel, and whether partisan gerrymandering violates free association rights under the First Amendment. The court just kind of ducked these questions and then Kennedy dropped the mic at the end and said, “I’m out. You guys get to deal with this next time around.” That is bad news for the left because however gettable Kennedy may have been on issues like gay rights and partisan gerrymandering, Kavanaugh is probably not going to be.

And then you saw of course the core issue, these rulings upholding Texas’ racial gerrymander, upholding Donald Trump’s travel ban, upholding Ohio’s voter purges. It was really pretty much all bad news. The only bright spot was Chief Justice John Roberts joining the liberals to hold that the government does need a warrant to search records of where your cellphone has been over the last weeks or months or years. That’s good news. I mean certainly the government should need a warrant to be able to track your every location over the course of months and years. But it also seems to me like kind of a commonsense ruling, not so much something that should be celebrated but something that should be greeted with a sigh of relief because at least the Supreme Court still has an ounce of common sense left.

The current SCOTUS term is over, but your work isn’t done. What stories are you keeping your eye on right now, besides Kavanaugh of course?

Well, that’s a great question. I am very interested to see over the next few months if states try to push the envelope on abortion rights and ready legislation that would cut back or simply abolish the right to abortion. This is something states have been preparing for—for decades, right? We have these trigger laws in certain states where as soon as Roe is overturned the states would ban abortion. And we have states just champing at the bit to shut down the one remaining clinic left in their borders. There are seven states in which there is just one abortion provider left, and in each of those states the legislature wants to shut down that one provider. I will be interested to see if there is movement on the ground to kind of you know finish killing off Roe in these states.

And I’ll also be interested to see if conservatives start bringing more and more lawsuits that they were worried Kennedy might rule against and they now think they can win—these anti-gay cases like the Masterpiece Cakeshop case or cases attempting to cut back same-sex couples’ rights to equality. These may be springing up because social conservatives want to push the limit of the post-Kennedy court. That’s what I’ll be looking out over the summer. But of course Kennedy doesn’t officially step down until July 31. So these guys have to hold out for just a little longer before they get their man on the court and they can start really doing what they’ve wanted to do for so long.

You’re covering a lot of tough issues right now. What’s keeping you sane?

Well you know we talked about the Iowa court decision and that was definitely a bright spot for reproductive rights. I would add that this election cycle, I’m seeing more interest in state Supreme Court races than I have seen in the past among progressives and that’s great news. We have two progressive candidates running for the Michigan State Supreme Court who could flip that court to a 4–3 liberal majority. We’re seeing an amazing civil rights activist running for the North Carolina State Supreme Court. Just a few months ago, a Democrat won a seat on the Wisconsin Supreme Court.

And just leaving aside the Democrat–Republican partisan politics of this, I just think that young people and progressives need to be so much more active and engaged in these legal issues in their home states because state courts decide many, many, many hugely controversial hot-button issues and oversee the powers of their legislatures and governors. And for all too long most of us have just tuned them out and not paid much attention to them.

I think the conservative takeover of the U.S. Supreme Court is going to compel a lot of people to pay more attention to the state courts, and I think that is a very healthy move because we need to be paying more attention to our decision-makers all throughout our democracy. For better or for worse, we do elect many of our judges in the states and we should have a say in who is sitting on those seats and how those rulings are coming down if that’s the system we’ve put in place. So I am enthused to see people paying attention to caring about their state courts. I would urge them to get involved because up until now all we’ve really seen are dark-money groups pouring millions into these elections to elect a conservative to the state Supreme Court, and that is not good for democracy.