WHEN YOUR ONLY ARGUMENT IS STARE DECISIS...:

Kavanaugh said that the Constitution does not directly address abortion and that the issue should instead be left to the democratic process. The court, he suggested, should remain "scrupulously neutral on the question of abortion -- neither pro-choice nor pro-life."

Kavanaugh later set forth a list of celebrated cases in which the court overruled prior decisions or announced new constitutional law. The cases he cited included Brown v. Board of Education, which outlawed racial segregation in public schools, Baker v. Carr, which helped enshrine the principle of "one person, one vote," and Obergefell v. Hodges, which recognized the right to same-sex marriage. Describing those and other rulings as some of the "most consequential and important in the court's history," Kavanaugh said that if the court had simply adhered to its precedent, the United States "would be a much different place." If we think that Roe and Casey are seriously wrong, he asked, why isn't the correct answer to overturn them and "return to a position of neutrality?"

Alito pressed a similar point with U.S. Solicitor General Elizabeth Prelogar, who argued on behalf of the United States as a "friend of the court" supporting Jackson Women's Health Organization, the only abortion clinic in Mississippi. Alito asked Prelogar whether the court's infamous 1896 decision in Plessy v. Ferguson, holding that racial segregation laws did not violate the Constitution as long as "separate but equal" facilities were available, could have been overruled one year after it was handed down. When Prelogar agreed that it should have been, Alito seized on the concession. That means, he stressed, there are circumstances in which an "egregiously wrong" decision can be overruled even if the facts on the ground have not changed.

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