Barrett Sees No ‘Superprecedent’ in Roe

T he indispensable Ed Whelan wrote not one, not two, not three, but four Bench Memos last week about Judge Amy Coney Barrett’s views on stare decisis, the legal principle compelling judges to adhere to precedent. Whelan’s posts were mostly written as rejoinders to hysterical critics of Barrett who accused her of being “right of Antonin Scalia,” and a “vote for [Clarence] Thomas-style radicalism.” They shouldn’t threaten us all with such a good time.

Whelan convincingly reveals these accusations to be rooted in partisanship, not a fair reading of her record. Indeed, Barrett has written nothing to suggest that she believes in totally disregarding precedent. On the contrary, Whelan contends, she has defended “the Court’s existing ‘weak presumption’ of stare decisis” but has refrained from calling for a weaker presumption. For evidence of Barrett’s respect for precedent, Whelan quotes Barrett, who wrote in “Precedent and Jurisprudential Disagreement” that:

Justifying a decision to overrule precedent, however, requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.

Whelan, surely anticipating the concerns of conservatives who might worry that Barrett would allow erroneous precedent to stand in the name of stare decisis, notes that Barrett says in that same article that it is:

. . . not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent. . . . If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.

He also points out that Barrett says in a footnote that “scholars do not put Roe [v. Wade] on the superprecedent list” since it is still the subject of so much public disagreement. Whelan’s efforts to assuage the fears of conservative court-watchers scarred by generations of disappointing nominees were reassuring, but my pessimism runs deep. Chief Justice John Roberts has been the most frustrating member of the existing conservative bloc, and his worst decisions have resulted from two flaws: His concern over the Court’s apparent instead of its actual legitimacy and his maddeningly selective belief in stare decisis.

The freshest Roberts disappointment came in his application of the precedent set by Whole Women’s Health v. Hellerstedt — a 2016 case in which he joined the dissenting justices — in June Medical Services LLC v. Russo. In Hellerstedt, Roberts agreed that a Texas law requiring abortionists to have admitting privileges at a hospital within 30 miles of the abortion provider did not place an undue burden on women seeking such a procedure. Four years later, June Medical presented a strikingly similar issue, this time concerning a Louisiana law. Yet, Roberts sided with the Court’s liberals, writing that “the question today is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” He opted for the latter, even going so far as to (mistakenly) invoke Edmund Burke in his shoddily argued concurrence in judgment. Still stewing over June Medical, I decided to do some additional digging to make sure that Barrett would be less inclined to make similar mistakes in the name of stare decisis.

What I found should be encouraging to “Thomas-style” radicals un-enamored with Roberts’s faux institutionalism. Barrett draws an important distinction between the “apparent” and “actual” legitimacy of the Court. Roberts tends to be chiefly concerned with the former, and this has caused him to twist himself into knots to satisfy progressives in cases such as June Medical and, most famously, National Federation of Independent Business v. Sebelius.

Barrett’s contention is that the legitimacy of the Supreme Court should not depend on whether its decisions always follow precedent or anger a certain political faction, but on the justices honestly enforcing their “best understanding” of the Constitution. Moreover, she writes that “the Court’s longstanding acceptance of it [overruling precedent] lends legitimacy to it” and that “a justice who votes to do so engages in a practice that the system itself has judged to be legitimate rather than lawless.” This leads me to believe that Barrett would follow her legal conscience instead of allowing political considerations or a doctrinaire adherence to stare decisis to guide her decision-making process.

In “Originalism and Stare Decisis,” another article authored by Barrett in her pre-Seventh Circuit days, she discusses Justice Scalia’s understanding of how to apply stare decisis within the originalist framework. If you’re able to read it, you’ll get a sense of the kind of intellectual firepower that she will bring to the Court and have your concerns that she will unquestioningly follow every precedent mollified. Her thesis is that various institutional factors prevent originalists from having to overturn cases that are integral to our constitutional order, and that an originalist would not seek to overturn such cases — think Brown v. Board of Education, Marbury v. Madison, etc. — should they come before the Court again. She again deems these “superprecedents,” or the kind of case that Scalia — whom she clerked for and whose judicial philosophy she shares — would not vote to overturn.

Yet, as in “Precedent and Jurisprudential Disagreement,” she uses Roe v. Wade and Planned Parenthood v. Casey as her examples of cases that are not entitled to “superprecedent” status or unflinching deference, despite the activist class’s insistence to the contrary. This should be heartening not only because overturning Roe and Casey is at the top of most conservatives’ wish lists, but because of what that would say about her general approach toward stare decisis. If she does indeed agree with Scalia that Roe and Casey should be done away with — a fair if not guaranteed assumption since it’s her go-to example of precedent that is not untouchable — the number of erroneous precedents she would be absolutely unwilling to overturn based purely on the principle of stare decisis are probably few.

Barrett’s academic work suggests that she would be a disciple of neither Thomas nor Roberts on the issue of stare decisis. She understands the importance of precedent and stability but also recognizes that a justice’s ultimate fidelity must be to the Constitution, not mistaken past decisions. However, her recognition of the difference between apparent and actual legitimacy, as well as her repeated implication that justices should not feel bound by Roe and Casey, should serve as no small comfort to conservatives who favor Thomas’s jurisprudence to Roberts’s.