Sen. Susan Collins’ defense of Supreme Court Justice Brett Kavanaugh’s vote in Gee v. June Medical Services clearly shows she has absolutely no knowledge about the difference in Supreme Court decisions based on “facial challenge” versus an “as-applied challenge,” or she is trying to give cover for her vote to confirm Kavanaugh.

Kavanaugh’s dissent argued that the plaintiff must bring an “as-applied” complaint or motion for a preliminary injunction after the law went into effect. That would be a complete shift in the precedent set by Whole Women’s Health v. Hellerstedt. In constitutional law, in a “facial challenge,” the plaintiff alleges that the legislation is always unconstitutional, and therefore void. An “as-applied challenge” alleges that a particular application of a statute is unconstitutional.

Simply put, this would cause any plaintiff to file on a case-by-case basis and in effect allows the law to stand as written to be considered constitutional. Only in an individual application could a legal challenged be raised. That is a clear means and pathway to overturning any all precedents.

When our Supreme Court is going to overrule any precedent, it does so on the basis of full briefing, arguments, and months of deliberation — which never occurred in Gee v. June Medical Services. This does not come close to what Collins claims is a “very careful dissent.” In fact, it flies in the face of the case Collins made in defense of her support Kavanaugh, as his dissent is not in support of “settled law” and “precedent.”

 

Michael Grove

Belgrade


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