Brett Kavanaugh and Ben Sasse Talk About Overturning Supreme Court Precedent

[EasyAce]

A revealing exchange between the SCOTUS nominee and the Republican senator.
By Damon Root
http://reason.com/blog/2018/09/07/brett-kavanaugh-and-ben-sasse-discuss-ov

With one simple question, Sen. Ben Sasse (R-Neb.) succeeded yesterday in doing what Senate Judiciary Committee Democrats spent two days trying and failing to do: Namely, Sasse got Supreme Court nominee Brett Kavanaugh to speak favorably about the idea of overturning a Supreme Court precedent . . .

. . . This exchange illuminates a crucial point that tends to get ignored amidst the spectacle of a confirmation fight. That point is this: Nobody truly believes that Supreme Court precedent is 100 percent sacrosanct. Nobody on the left thinks this, and nobody on the right thinks this. Indeed, everybody involved in the legal debates over the meaning and application of the Constitution can probably name at least one SCOTUS precedent that they would like to see destroyed. Many conservatives would of course like to see Roe reversed. Many progressives would like to see Citizens United go down. For my part, I'd put The Slaughter-House Cases on the chopping block.

To be sure, stare decisis is a venerable doctrine in American law. But as Sen. Sasse's questioning reminds us, it is not the only venerable doctrine.

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Note: Damon Root has written a splendid book, Overruled: The Long War for Control of the U.S. Supreme Court, in which he argued among other things that the Slaughter-House Cases unconstitutionally granted a monopoly to one corporation when it came to Louisiana's slaughter house business and, concurrently, inadvertently weakened the Fourteenth Amendment. (Root's book also argued against the infamous Kelo decision of a few years ago---the decision that allowed an eminent-domain taking for business, not for public purpose.) It's very valuable reading for anyone with more than a passing interest in the Supreme Court.---EA.

[Bigun]

Excellent article!   Thanks for finding and posting it @EasyAce.

[jmyrlefuller]

For my part, I'd put The Slaughter-House Cases on the chopping block.

I'm pretty sure the Warren Court did as much already.

[EasyAce]

I'm pretty sure the Warren Court did as much already.

They never got to the Warren Court. The state of Louisiana took care of the Slaughter House Cases in due course---the Crescent City Company's Court-sanction monopoly lasted only long enough before Louisiana adopted a new state constitution that limited the state's power to grant monopolies to slaughterhouses and other businesses. It also banned lower governments in the state from doing likewise. To my knowledge no other case before the Supreme Court since has gone after the Slaughter House Cases ruling directly.