“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.”
“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”
“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.”
“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.”“