Last Sunday, Sen. Susan Collins made news when she bucked the conventional wisdom that Justice Anthony Kennedy’s retirement from the U.S. Supreme Court threatens the future of legal abortion in this country. After saying that she would not vote for a nominee to replace Kennedy who evinced a willingness to overturn Roe v. Wade, she expressed more general confidence that Roe is not in danger, explaining that she also believes President Donald Trump’s first appointee to the court, Neil Gorsuch, would not vote to overturn that decision. The reason why: she believes Justice Gorsuch has a commitment to precedent that will keep him from doing so.
That belief is gravely misplaced.
At his confirmation hearing, then-Judge Gorsuch certainly did his best to convince the senators who would be voting on his nomination that he would adhere to precedent. “You start with a heavy, heavy presumption in favor of precedent in our system,” he told them. “[T]he judge’s job,” he explained, “is to … approach the law as you find it, and that’s part of the precedent of the United States Supreme Court, that I’m sworn as a sitting judge to give the full weight and respect to due precedent.”
To be sure, he acknowledged that “in a very few cases, you may overrule precedent,” but he also promised that he would follow Supreme Court precedent about when it is appropriate to overrule a case. “I follow precedent,” he said at one point. At another he said, “The Supreme Court Justice is bound by precedent, too.” And at still another, he said, “I will follow the law of judicial precedent in this and in every other area, senator, it’s my promise to you.”
But in his first full year on the court, Gorsuch has repeatedly broken that promise.
In Janus v. AFSCME, Gorsuch voted to overrule a 41-year-old precedent upholding the constitutionality of state laws that allow public sector unions to require nonmembers to pay their fair share of the costs of collective bargaining. As Justice Elena Kagan observed in dissent, “Rarely, if ever, has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis.”
In South Dakota v. Wayfair, a case about internet retailers and state sales tax, Gorsuch joined the majority holding that two earlier Supreme Court decisions — one from 1967 and one from 1992 — “should be, and now are, overruled.” In dissent, Chief Justice John Roberts chided the majority for its rejection of precedent: “This Court ‘does not overturn its precedents lightly.’”
In Abbott v. Perez, a case upholding Texas’ redistricting map, Gorsuch joined Justice Clarence Thomas’ one-paragraph concurrence saying that the Voting Rights Act “does not apply to redistricting,” notwithstanding countless cases holding otherwise. That would require overturning precedent in a number of cases, including Thornburg v. Gingles. Without briefing or argument, Gorsuch would have rewritten the Voting Rights Act’s main protection against racial discrimination in voting.
And if all that were not enough, Gorsuch several times this year indicated that the court should potentially revisit other precedents, as well.
The point isn’t that Gorsuch was necessarily wrong in all these cases — precedent should sometimes be overruled — but the sheer number of times last term that he voted to overrule precedents or aggressively called them into question belies his promises that he always starts with a “heavy, heavy presumption in favor of precedent.”
Instead, it suggests a justice who starts with his own views about what the Constitution requires. And while the Constitution supports a woman’s right to choose, Trump made clear before he nominated Gorsuch that he would only appoint justices who were willing to overrule Roe.
So if Gorsuch is going to start with his own views, rather than with precedent, those who believe in a woman’s right to choose should be worried.
Brianne Gorod, a former clerk to Supreme Court Justice Stephen Breyer, is chief counsel of the Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text, history and values. Follow her on Twitter: @BrianneGorod.
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