The nation waits again, breathlessly, to find out if Sen. Susan Collins still feels "vindicated" for her vote to confirm Brett Kavanaugh to the Supreme Court now that the court has struck down a 40-year-old precedent with his vote, a harbinger of the inevitable challenge to abortion rights.
This decision, in Franchise Tax Board of California v. Hyatt, overturned Nevada v. Hall, a ruling from 1979 allowing private lawsuits against states in another state's court, and caused Justice Stephen Breyer to sound a clear alarm in his dissent for the future of Roe v. Wade. In his dissent, he referenced a 1992 abortion case, Planned Parenthood v. Casey, which upheld the constitutional right to abortion. "It is one thing to overrule a case," he wrote, quoting Casey, "when it 'de[fies] practical workability,' when 'related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,' or when 'facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.'
"It is far more dangerous," he continued," to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question." Hall, he said, was "a well reasoned decision that has caused no serious practical problems in the four decades since we decided it." He concludes, "Today’s decision can only cause one to wonder which cases the Court will overrule next."
That's as clear and dire a warning as a Supreme Court justice is going to give, except maybe the one Justice Clarence Thomas gave in the majority opinion. He writes about stare decisis, the doctrine of precedent that Collins was so convinced Kavanaugh would respect, that it "is 'not an inexorable command,' and we have held that it is 'at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment.'" In other words, with Kavanaugh on board, the Roberts Five are going to be as extreme as they want to be.
And Susan Collins built that.
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