What Does Brett Kavanaugh Think of Precedent? Here’s Another Clue

The Supreme Court faces three major issues in our current historical moment: precedent, precedent, and precedent. The big question: Will the justices limit abortion rights by overturning the fifty-year precedent of Roe v. Wade or the thirty-year precedent of Casey v. Planned Parenthood? To try to anwer it, court watchers like me spend a lot of our time reading the tea leaves of even relatively minor Supreme Court opinions. And on this issue, no kind of tea is more important than the one that comes in the box labeled Justice Brett Kavanaugh.

On Monday, Kavanaugh joined a short opinion by Justice Sonia Sotomayor in which she commented on the court’s decision to decline a case about whether women should have to start registering for the military draft. Sotomayor’s opinion is intriguing because it addresses precedent in two different ways. Kavanaugh’s decision to join it, along with Justice Stephen Breyer, is more intriguing still.