We don’t really know who Justice Gorsuch will prove to be. Not truly. We have his track record in the lower courts. We have his careful statements before the Senate. We have a couple of decisions or opinions as a Justice, so far. But to suggest that we know how Gorsuch will rule on any attempt to overturn Roe v. Wade is premature. As is any suggestion on how Trump’s pick to replace Kennedy will rule.

A somewhat different question is: does Senator Susan Collins know – or think she knows – how Gorsuch (and Trump’s soon-to-be-announced pick) may rule? Or is she just giving hints to whoever Trump nominates that they will have to play that cautious footsie with the world’s most exclusive club to allow everyone to get what they want: a soundbite that supports their particular stance, among a range of conflicting stances?

In other words, will this coming confirmation process be a somewhat more rushed version of the usual confirmation kabuki theatre – including ring-kissing and excruciatingly sculpted responses – or will the raging brawl over abortion push and shove its way into the Senate chambers and strip things down to the basic, ugly confrontation between a mother and her unborn child?

What seems to be key in trying to decide what Senator Collins position will be during the hearings, is the concept – apparently dear to America’s legal system – called Stare Decisis or “to stand by things decided.” Also known as the doctrine of precedent. In Kimble v. Marvel Enterprises (yes, those guys) which was about a patent dispute surrounding a Spiderman toy, Marvel’s legal team defined Stare Decisis as follows:

stare decisis promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.

As Cornell’s Legal Information Institute goes on to say:

In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines.

Which basically means: don’t keep pestering us with this issue guys, it’s been settled! For example, in the abortion debate. Even if legal scholars to a noticeable degree feel that Roe v. Wade is based on faulty reasoning as evidenced by Justice Blackmun’s flawed logic, it would take a lot to overturn the decision. And Susan Collins seems to be suggesting that Justice Gorsuch, for example, gives a fair amount of weight to Stare decisis in his opinions and rulings in the past.

The reason for avoiding re-litigating past decisions seems to be an attempt to isolate the Supreme Court, and the Judiciary by extension, from the swirling political environment which throws up these controversial cases. We shall rise above the fray, or sink below the surface and hope everyone has stopped shouting by the time we come up for air again.

Does it work, or do these controversial cases arise because the Supreme Court has – on more than a few occasions in the past – tried to settle a political dispute in the hope that the shouting goes away? Or the shooting. Consider Dred Scott v. Sandford, the 1857 SCOTUS ruling that justified slavery with language worthy of apartheid South Africa, and which helped lead to the Civil War and eventually the 14th amendment. The Taney court (so legal minds tell the rest of us) invoked what is called ‘substantive due process’, where the court protects fundamental rights by placing them out of the reach of the rest of government. In this case, perversely they protected the rights of slaveowners by forbidding Congress from freeing slaves in Federal territories.

Interesting to use Dred Scott v Sandford to talk about Roe v Wade because both sides can (and likely will) claim they are (or more accurately, represent) the victimized heirs of that ruling: women who wish to abort and their so-called abortion rights, and those defending the rights of unborn children.

So, the question becomes: what would it take to overturn the Stare Decisis of over 45 years of Roe v Wade and would a Justice like Gorsuch and would whoever the president nominates over the next week or so, be willing to stare down Stare Decisis and overturn precedent?

Maybe Senator Collins is just covering her rear flank with her round of interviews over the past few days and ensuring that she wins her next election. Maybe she really is an old-fashioned purist who looks only to ability and character and then lets justice run its course. Or maybe she thinks it will be a lot harder to overturn Roe v Wade than either side realize.

And maybe we should all read up a little on Stare Decisis and the judiciary, in preparation for what will be a nasty confirmation battle.

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