Short Take: Dissent-err-y

Ed. Note: This is a guest post by Charles Landrum, who practices trademark and copyright law in Roswell, Georgia.

headline caught my eye: “Brett Kavanaugh respects precedent about as much as I respect Brett Kavanaugh.” 1

Good ol’ precedent. Bronze the ones you like, burn the ones you don’t. How often the passionate forget that Plessy was precedent. Until it wasn’t. Buck v. Bell still is. I clicked, expecting a typical confirmation-hearing article about how this nominee isn’t respecting those precedents that the author likes. What precedent had Judge Kavanaugh disrespected, out of his 300 opinions during his time on the D.C. Circuit? Was it so bad that, after granting cert, one of the nine benchslapped him from across town?

No. Not even close.

In 2011, Kavanaugh wrote a dissent arguing that a Washington, D.C. law banning certain military-grade assault weapons—namely semiautomatic rifles like the AR-15—was unconstitutional. How, Democratic Sen. Dianne Feinstein wondered, could Kavanaugh reach that conclusion, when the Supreme Court has held only that the Constitution protects the use of handguns in the home?

A dissent? You mean the side whose argument expressly is not deciding the case? Even if he twisted precedent into a pretzel, he’s not deciding anything. What about a case where he was in the majority and he dissed either SCOTUS or an en banc panel of the D.C. Circuit? Next case.

Kavanaugh turns out to be pretty good at that, as Democratic Sen. Dick Durbin seemed to imply when he questioned the judge about his dissent in the case Garza v. Hargan.

Another dissent? Does the author not know how dissents work?

Maybe the third time’s the charm. Or not. Out of 300 opinions, the author’s got nothing. Not a single opinion where Judge Kavanaugh, as part of the team actually deciding a case, “disrespected” precedent. Instead, he moves on to an opinion by Judge Gorsuch:

We will hear plenty more from Kavanaugh on Thursday about the timeless beauty and utmost gravity of precedent—about how he hues closely to it and would continue doing so on the Supreme Court. Don’t believe it. Justice Neil Gorsuch said the same thing during his confirmation hearings, then promptly overturned a 40-year-old precedent via his vote in Janus v. AFSCME. Kavanaugh is reading from a script, one he will jettison as soon as he dons his robe at SCOTUS.

Was it just that Gorsuch was too fast? Or that the precedent had stood for so long? Earl Warren was appointed on October 5, 1953. Brown was decided May 17, 1954. Plessy stood for almost 60 years before it was disrespected. Sometimes precedent gets what it deserves.

But that’s how the system works. The Nine get to make precedent and, if they choose, overturn precedent. They aren’t disrespecting it. That’s what they are appointed to do. And if you are writing a dissent, it doesn’t matter how much “respect” you have for the precedent being overturned. It’s gone. Just ask Justice Kagan.

1 Shortly after publishing, Slate changed the title to “The Precedent Respecter Has Logged On.”

11 thoughts on “Short Take: Dissent-err-y

  1. DaveL

    How, Democratic Sen. Dianne Feinstein wondered, could Kavanaugh reach that conclusion, when the Supreme Court has held only that the Constitution protects the use of handguns in the home?

    The question is phrased as if Heller declared bans on semi-automatic rifles to be constitutional. That would constitute a precedent. But of course, it did nothing of the sort, so his finding that the ban was unconstitutional could not disrespect precedent.

    1. SHG Post author

      Feinstein did what one would expect her to do: she asked about “assault rifles” and he answered about “semi-automatic rifles.” It’s the rhetorical dividing line, one side designed to strike fear and the other designed to be factual.

  2. Dan

    …and his argument regarding the “assault weapons” ban was an entirely sensible extension of Heller. Heller held that weapons in common use are protected. The AR-15 pattern rifles are in extraordinarily common use, being by far the best-selling centerfire rifles in the country. Feinstein was trying to argue that common possession does not equate to common use, which is simply nonsensical. Kavanaugh’s dissent was precisely in accord with precedent, even if the remainder of the panel refused to see it.

  3. David Meyer-Lindenberg

    Oy vey. From “military-grade assault weapons—namely semiautomatic rifles like the AR-15” to his hilarious misunderstanding of Heller to “hues closely,” this is a true tour de force from Mark Joseph Stern. I seem to remember someone claiming he’s a lawyer, but surely that’s impossible.

    Thanks, Charles, this was a good, smart post.

    1. SHG Post author

      What bothers me most about MJS is how he can be fairly astute about law when he wants to, and yet whore his agenda shamelessly when he chooses. It makes it so very hard to decide whether to reduce him to Roxane Gay level idiocy or try to pull a “thread the needle” level idiocy.

      1. David Meyer-Lindenberg

        Forget him – I feel for the people at Slate who read this shit. Between MJS and Dahlia Lithwick, it’s gotta be rough out there for progressive legal understanding.

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