The Supreme Court took two actions on Monday that hint that many Democrats’ worst fears about the Court’s 6-3 Republican majority might come true.
The first was the Court’s announcement that it will hear Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning nearly all abortions after 15 weeks of pregnancy. Dobbs is potentially an existential threat to the constitutional right to an abortion, and it tees up the question of whether this Court is willing to overrule venerable decisions like Roe v. Wade, which are beloved by liberals and loathed by conservatives.
The second action involved a more obscure case. Last year, in Ramos v. Louisiana, the Supreme Court held that no one could be convicted of a “serious crime” unless a jury voted unanimously to convict them. On Monday, the Supreme Court held in Edwards v. Vannoy that Ramos is not retroactive — meaning that nearly all people convicted by non-unanimous jury verdicts before Ramos was decided will not benefit from the Ramos decision.
On the surface, the Court’s decision to hear a major abortion case, and its decision not to apply one of its criminal justice precedents retroactively, may appear to have little in common. But taken together, they foreshadow a world where the Court’s new majority is willing to overturn longstanding precedents, potentially with little justification for doing so other than that the Court’s Republican majority would prefer to overrule liberal decisions such as Roe.
Because here’s the thing: Edwards did not simply limit the scope of Ramos. Justice Brett Kavanaugh’s majority opinion also overruled a 32-year-old decision governing when the Supreme Court’s precedents apply retroactively. Kavanaugh did so, moreover, without following the ordinary procedures that the Court normally follows before overruling one of its previous decisions. As Justice Elena Kagan points out in dissent, no one asked the Court to overrule anything in Edwards, and the Court “usually confines itself to the issues raised and briefed by the parties.”
Edwards, moreover, is the second time in less than a month that Kavanaugh authored a majority opinion that overrules a prior decision without following the Court’s normal procedures. In late April, Kavanaugh handed down a decision in Jones v. Mississippi that effectively overruled a 2016 decision establishing that nearly all juvenile offenders may not be sentenced to life without parole.
But Jones overruled this 2016 decision in such an oblique and underhanded way that several of Kavanaugh’s colleagues came very close to accusing him of lying about what he was doing. Even Justice Clarence Thomas, the Court’s most conservative member, chided Kavanaugh for overruling a previous decision “in substance but not in name.”
The Court historically has been very reluctant to overrule precedents, both because past justices understood that the law should be predictable, and because strong norms against overruling past decisions help prevent the Supreme Court from becoming a purely partisan prize — tossing out decades’ worth of settled doctrines every time a different political party gains control of the Court.
But Kavanaugh does not appear to share his predecessors’ reluctance to overrule past decisions.
All of this matters because Kavanaugh is the median vote on the Supreme Court. Last week, SCOTUSBlog published an analysis finding that Kavanaugh voted with the majority in 97 percent of cases decided so far this Supreme Court term — more than any other justice. If you want to win a case before the Supreme Court, you’ve got a tough road ahead of you if you can’t secure Kavanaugh’s vote.
And yet, Kavanaugh is signaling in Edwards, Jones, and in a few other significant opinions that he does not particularly care about precedent, and that he is willing to overrule prior decisions for reasons that previous Supreme Courts would have deemed trivial and unwarranted.
With conservatives holding a 6-3 supermajority on the Supreme Court, that’s terrible news for liberals. And it doesn’t just mean that precedents like the Court’s pro-abortion decision in Roe v. Wade (1973) are in danger.
Kavanaugh, the closest thing that this Supreme Court has to a “swing” justice, is telling us that he’s very willing to overrule a wide range of precedents. And a majority of the Court appears to agree with his approach. That’s potentially disastrous news for anyone hoping that this Supreme Court would honor past decisions that protect liberal democratic values.
So what happened in Edwards, exactly?
Edwards involved a question that comes up fairly often in the Court’s criminal justice decisions: When the Court announces a new constitutional rule governing criminal convictions or sentences, does that rule apply retroactively to people whose convictions or sentences were already final when the new rule was handed down?
In Teague v. Lane (1989), the Supreme Court identified a few limited circumstances when a new rule should apply retroactively. The first circumstance is if the new rule places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Thus, for example, if the Supreme Court were to hold that it is unconstitutional to convict someone for marijuana possession, then that rule would apply retroactively because it places the act of possessing marijuana “beyond the power of the criminal law-making authority to proscribe.”
Subsequent Supreme Court decisions clarified that a new criminal justice rule also applies retroactively if it forbids “a certain category of punishment for a class of defendants because of their status or offense.” Thus, for example, when the Supreme Court held in Atkins v. Virginia (2002) that intellectually disabled people are not eligible for the death penalty, that rule was retroactive because it determined that a certain class of people could not receive a certain category of punishment.
Teague held that “watershed rules of criminal procedure” are also retroactive. The Edwards case asked whether the rule announced in Ramos — the rule that no one can be convicted of a serious crime unless the jury verdict is unanimous — was such a watershed rule.
In holding that Ramos did not announce such a “watershed” rule, Kavanaugh explains that the bar for determining what constitutes a watershed rule is quite high. Indeed, in the Court’s entire history, it’s only identified one such rule: the decision in Gideon v. Wainwright (1963) holding that indigent criminal defendants are entitled to defense counsel paid for by the state.
And yet, rather than just holding that Ramos did not announce a watershed rule and leave it at that, Kavanaugh’s opinion goes much further. “Some 32 years after Teague,” Kavanaugh writes, it’s now clear that “no new rules of criminal procedure can satisfy the watershed exception.” Thus, he concludes, “we cannot responsibly continue to suggest otherwise to litigants and courts.”
Edwards holds that no new watershed rules exist, no matter what the circumstances. Teague’s verdict on watershed rules is now overruled.
Kavanaugh’s shifting justifications for overruling prior decisions
The Court’s decision to overrule part of Teague is surprising for several reasons. For one thing, as Kagan notes in her dissent, no one asked the Court to do so. Typically, before the Court overrules a precedent, it seeks out briefing from the parties on whether that precedent should be overruled — that way, if there will be some disastrous or unexpected consequence if the precedent is overruled, the parties can warn the justices about it in advance.
Kavanaugh also does not appear to have followed his own rules governing when a previous Court decision should be overruled. In Ramos, the Court effectively overruled another decision, Apodaca v. Oregon (1972), which permitted states to convict criminal defendants via a non-unanimous jury vote. Kavanaugh agreed with this result in Ramos, but he also wrote a separate opinion laying out when he thinks it is acceptable for the Supreme Court to overrule a prior decision.
When deciding whether to overrule a precedent, Kavanaugh wrote, the Court should consider whether the previous decision is “not just wrong, but grievously or egregiously wrong.” It should consider whether “the prior decision caused significant negative jurisprudential or real-world consequences,” and it should ask whether overruling the prior precedent would upset “legitimate expectations of those who have reasonably relied on the precedent.”
But Kavanaugh engaged in none of this analysis in Edwards, and it’s hard to see how Teague would qualify as worthy of being overruled under the standard Kavanaugh articulated in Ramos. Kavanaugh doesn’t claim in Edwards that Teague was egregiously wrong or that it’s led to “significant negative jurisprudential or real-world consequences.” Indeed, he claims the exact opposite — that Teague’s holding regarding “watershed” rules should be overruled because it’s had no jurisprudential or real-world consequences whatsoever.
Kavanaugh also ignored the standard he laid out in Ramos in his opinion in Jones v. Mississippi, the decision involving whether juveniles who commit homicide crimes can be sentenced to life without parole.
In Miller v. Alabama (2012), the Supreme Court held that most people who commit a crime before their 18th birthday may not be sentenced to life without parole, even if the crime is murder. And, in Montgomery v. Louisiana (2016), the Court held that Miller applies retroactively because it prohibited a certain category of offenders (nearly all juvenile offenders) from receiving a certain punishment (life without parole).
Miller and Montgomery did, however, suggest that a very small category of juvenile offenders, “those whose crimes reflect permanent incorrigibility,” are still eligible for life without parole. The issue in Jones was whether a sentencing judge must explicitly determine that a particular juvenile offender is “permanently incorrigible” before sentencing them to life without parole.
Kavanaugh’s decision in Jones doesn’t simply hold that sentencing judges do not need to make this determination; it eliminates Montgomery’s holding that nearly all juvenile offenders are categorically ineligible for life without parole. Kavanaugh’s opinion in Jones establishes that all juvenile homicide offenders may be sentenced to life without parole, so long as they are sentenced in a “discretionary” proceeding where the judge has the option to impose a lighter sentence.
“In a case involving an individual who was under 18 when he or she committed a homicide,” Kavanaugh wrote for the new, more conservative majority that decided the Jones case, “a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.”
Four justices called Kavanaugh out for overruling Montgomery without being entirely honest about what he was up to. Though Thomas agreed with Kavanaugh that Montgomery should be overruled, he wrote that the Court should be more candid when it overrules a prior precedent. Hence his dig at Kavanaugh for overruling Montgomery “in substance but not in name.”
Meanwhile, the Court’s three liberal justices joined an opinion by Justice Sonia Sotomayor that walked right up to the line of accusing Kavanaugh of lying about what he was up to in his majority opinion. “The Court simply rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing,” Sotomayor wrote. “The Court,” she added, “knows what it is doing.”
Kavanaugh’s loose approach to precedent, in other words, isn’t simply being noticed by legal experts and court-watchers. It’s being noticed by Kavanaugh’s colleagues to his right and to his left — and four of them recently called him out for it.
Kavanaugh’s views on precedents endanger American democracy
There’s at least one other important case where Kavanaugh revealed that he is eager to toss out several longstanding precedents — and that case has tremendous implications for whether the United States will have anything resembling free and fair elections in the future.
In election years, state election officials and state court judges often hand down decisions implicating how the election will be run — and who will be allowed to vote in that election. This was especially true in 2020, as many state election boards and state courts tried to accommodate voters who were afraid to visit a polling place during a pandemic.
Many Republicans did not like many of these decisions by election officials and state courts, which made it easier for many voters to cast a ballot, so they brought a series of lawsuits arguing that these efforts to expand access to voting were unconstitutional. The crux of these Republicans’ arguments was that the Constitution only permits state legislatures, and not state courts or other state election officials, to determine how a state conducts a federal election.
This is not a new argument, but it’s one that the Supreme Court has repeatedly rejected in a long line of decisions that stretch back more than a century. The Court most recently rejected this argument in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), which reaffirmed that a state’s power to enact election laws is “to be performed in accordance with the State’s prescriptions for lawmaking.”
So, if a state’s constitution protects the right to vote, these protections may be enforced by the state’s courts. And if the state constitution allows statewide boards to be given the power to interpret state laws, then a state election board may be given the power to interpret state election law.
Nevertheless, in Democratic National Committee v. Wisconsin State Legislature (2020), Kavanaugh joined an opinion by Justice Neil Gorsuch that would have overruled Arizona State Legislature as well as a line of Supreme Court decisions stretching back at least as far as 1916 — though it’s worth noting that Gorsuch’s opinion was not joined by a majority of his colleagues.
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch claimed in his opinion.
Taken to its logical extreme, Gorsuch and Kavanaugh’s approach would have profound implications for future elections. It could mean that Democratic state governors in states with Republican legislatures — such as Wisconsin, Michigan, and Pennsylvania — are not allowed to veto most state election laws, including congressional gerrymanders.
It could also mean that state courts are not allowed to enforce state constitutional provisions protecting the right to vote or forbidding gerrymandering. And it could invalidate independent redistricting commissions that take the power to draw congressional districts out of the hands of a partisan state legislature.
To date, four justices — Gorsuch and Kavanaugh, plus Justices Thomas and Samuel Alito — have endorsed the approach Gorsuch and Kavanaugh took in Democratic National Committee. Justice Amy Coney Barrett was not on the Court when Democratic National Committee was handed down, and has thus far not weighed in on the question of whether state legislatures have unchecked power over how states conduct federal elections — so the decision whether to implement this rule likely rests in her hands.
In any event, Kavanaugh, the median justice on most contentious issues that arise before the Court, is perfectly willing to overrule more than a century worth of precedent. And he’s willing to do so even when overruling those precedents would upend fundamental assumptions about how state election laws work — and who is in charge of deciding how our elections are conducted.
More broadly, much of American law — the constitutionality of the Affordable Care Act, the right to an abortion, the power of the EPA to protect the environment, the power of states to require businesses not to discriminate against LGBTQ workers and customers, and numerous other laws — hinges on the Supreme Court’s willingness to honor past decisions that Republicans don’t like very much.
Liberals, in other words, are depending on the doctrine of stare decisis — the idea that courts should typically be bound by their prior decisions — to stave off a conservative legal revolution.
And as liberals shout for stare decisis to save them, the Court’s median justice is looking down upon them, and whispering “no.”
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