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Supreme Court Confirmation Myth #1

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September 10, 2018

According to the online magazine Reason, there was a rare moment of truth during the Kavanaugh hearings, one that should be preserved and cited during future hearings. Nominees, including Kavanaugh, routinely weasel out of answering inquiries about their ideology and judicial philosophy by citing precedent as if it were the sacred text of some religion they practice, but Sen. Ben Sasse got Kavanaugh to speak favorably about the idea of overturning a Supreme Court precedent. He used the example of Plessy v. Ferguson, the 1896 ruling that established the concept of “separate but equal.” Kavanaugh responded by dissecting Thurgood Marshall’s legal strategy as an NAACP lawyer of litigating cases one by one in lower courts, each designed to illuminate the fact that separate is not equal, before bringing Brown v. Board of Education before the Supreme Court. Marshall knew that the way to bring about change was to create a body of law that undermined the foundations of Plessy, Kavanaugh explained, because precedent is entitled to respect under the principles of stare decisis, but that doesn’t mean it is sacrosanct.

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