Justices Brett Kavanaugh and Stephen Breyer clashed over the role the Supreme Court has in overturning its own precedents Wednesday during arguments in a major Mississippi abortion case.
The case, Dobbs v. Jackson Women's Health Organization, has the potential to overturn Roe v. Wade.
"History tells a somewhat different story, I think, than is sometimes assumed," Kavanaugh said about stare decisis -- the principle that the court should stick to its past rulings.
"If you think about some of the most important cases in this court's history... there's a string of them where the cases overruled precedent," he said.
Kavanaugh continued: "Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person, one vote. West Coast Hotel, which recognized the state's authority to regulate business. Miranda versus Arizona, which required police to give warnings... about the right to remain silent... Lawrence v. Texas said that the state may not prohibit same sex conduct. Mapp v. Ohio, which held that the exclusionary rule applies to state criminal prosecution."
"In each of those cases... and I could go on. And those are some of the most consequential and important in the court's history, the court overruled precedent," Kavanaugh said.
A few minutes later Breyer slammed Kavanaugh for making allegedly false equivalencies between Roe and the other cases he cited.
"They do not include the list that Justice Kavanaugh had here... There are complex criteria that she's talking about that link to the position in the rule of law of this court," Breyer said. "All I would say is tou have to read them before beginning to say whether they are overruling or not overruling in the sense meant there calling for special concern."
Breyer was referring to the opinion of former Justice Sandra Day O'Conner in Planned Parenthood v. Casey analyzing when to overturn major precedents.
U.S. Solicitor General Elizabeth Prelogar agreed.
"This is actually another key distinction from the cases that Justice Kavanaugh was referring to," she said. "The decision to overrule nevertheless, perhaps based on the... conclusion that the justices thought the case was wrongly decided in the first instance, would run counter to the ability of stare decisis to function as a cornerstone of the rule of law."
Source : https://www.foxnews.com/live-news/supreme-court-mississippi-abortion-roe398