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The Dangers of Complacency

On May 13, 2019

At 11:58 am

In General

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Senate Majority Leader Mitch McConnell, a Republican from Kentucky, from left, Brett Kavanaugh, U.S. Supreme Court associate justice nominee for U.S. President Donald Trump, and U.S. Vice President Mike Pence, stand during a meeting at the U.S. Capitol in Washington, D.C., U.S., on Tuesday, July 10, 2018. Senate Republicans are pledging a swift confirmation process that would put Kavanaugh on the bench before the new term opens Oct. 1, and there is little Democrats can do to stop them. Photographer: Chip Somodevilla/Pool via Bloomberg

It’s been quietly deleted without an explicit correction — a problem in itself — but this Washington Post article about Georgia’s remarkably draconian anti-abortion statute had a truly massive howler:

Um, this is REALLY misleading readers. There is no “rule” that requires the Supreme Court to uphold its own precedents and certainly no rule that prevents precedents from being overruled because of a change in personnel https://t.co/rpCsEQMZBu pic.twitter.com/HzD3hskq3U— Scott Lemieux (@LemieuxLGM) May 11, 2019

There is, of course, no “rule” in the sense that requires a top appellate court to uphold its own precedents, or prevents them from being overruled merely because of personnel changes. One could of course cite many examples from the Roberts Court, but the most obviously relevant one is Gonzales v. Carhart, in which the Court upheld a federal abortion statute essentially identical to a state one it had struck down less than a decade before solely because the median vote on the Court changed. I understand why Susan Collins wants to feed voters this bullshit about how stare decisis is some kind of shield that will protect Roe, but reporters really need to do better.

And as Mark Joseph Stern points out in this thread, a lot of what remains in the article has similar problems, giving the most reassuring interpretations of the law and fundamentally misapprehending what Georgia Republicans are trying to do. This new wave of laws is actually considerably worse than the already terrible old pre-Roe abortion statutes, and I fear too many reporters don’t yet have any idea what they’re dealing with or how little chance there is that Roe will be a meaningfully controlling precedent in five years.

…the fact the Court chose to cast a 5-4 vote overruling a precedent from 1979 the Monday after this article came out is perfect:

Washington Post, May 11, 2019, versus United States Supreme Court, May 13, 2019.

(For what it's worth, WaPo did revise it after criticism, see third pic.) pic.twitter.com/dakmaBFfOQ— Max Kennerly (@MaxKennerly) May 13, 2019

Even better, this was based on “sovereign immunity,” a bullshit doctrine that contradicts the explicit text of the Constitution! [Chef’s kiss]