Brett Kavanaugh is about to make Susan Collins look ridiculous. Many people remember Senator Collins’s stomach-turning defense of an alleged attempted rapist on the Senate floor. But her defense of Kavanaugh’s character somewhat masked her equally ludicrous defense of Kavanaugh’s judicial record.
She said of Kavanaugh, “He believes that precedent is not just a judicial policy, it is constitutionally dictated to pay attention and pay heed to rules of precedent.”
That was a lie. Kavanaugh does not respect precedent. And now, he gets a chance to prove it.
Earlier today, the Supreme Court agreed to hear a case called June Medical Services v. Gee. At issue is a Louisiana law that requires physicians who provide abortion services to have admitting privileges at nearby hospitals. We call these kinds of laws Targeted Restrictions on Abortion Providers laws, or “TRAP” laws. The anti-abortion advocates who support them argue that they are trying to make abortions “safer,” but they are really designed to restrict access to abortions to the point where no one can functionally get one.
If this issue feels familiar to you, don’t worry, you are not forgetting what year you’re in. The Louisiana law at issue is nearly identical to a law passed in Texas that the Supreme Court struck down way back in (checks notes) 2016. That case was called Whole Woman’s Health v. Hellerstedt. There, Justice Stepehen Breyer, writing for a 5-3 majority, ruled that admitting-privileges laws place an “undue burden” on abortion access and therefore were unconstitutional. You don’t get much more precedential than a case that came out around the time Beyoncé released Formation.
Despite the fact that Whole Woman’s Health was already on the books, the US Court of Appeals for the Fifth Circuit upheld the Louisiana TRAP law in 2018, in direct violation of Whole Woman’s Health, by arguing that the Louisiana law was factually implemented differently from the Texas law. The Fifth Circuit was essentially daring the Supreme Court to do something about it.
The Supreme Court should have summarily reversed the Fifth Circuit. No briefing, no hearing. The Fifth Circuit primarily reviewed the Louisiana law from the perspective of whether the abortion doctors faced an undue burden when applying for admitting privileges. This is a clear error in the application of precedent, which tells us that we should look at the burden placed on women. Women, you might recall, are human people with constitutional rights; doctors, are a professional class who are supposed to provide health care when asked. The Supreme Court should have overturned the Fifth Circuit for the sheer audacity of so blatantly defying the law.
But the Supreme Court now includes Brett Kavanaugh. It takes only four votes to make the Supreme Court hear a case, not five. Most likely, Kavanuagh was the fourth vote to consider the intellectually dishonest arguments surfaced by the Fifth Circuit in this case.
The fact that the Supreme Court did not summarily reject the Fifth Circuit’s opinion is why abortion rights advocates, and rule of law advocates, are so troubled. The only significant change in the legal conversation around TRAP laws is that in 2016 Anthony Kennedy was on the court, while now we have Kavanaugh.
That one change should not lead to the reversal of Supreme Court precedent established only a few years ago. But it will. It is because Susan Collins was always lying about Brett Kavanaugh. He doesn’t respect precedent. Louisiana knows it, the Fifth Circuit knows it, and women who want autonomy over their bodies know it all too well. Susan Collins either knew that Kavanaugh would do exactly this, and is therefore a liar, or she was the only person who didn’t know, and is therefore a fool.