Why Judge Barrett Doesn’t Know Whether She Would Overturn Precedent

D uring then-Judge Ruth Bader Ginsburg’s confirmation hearings before the Senate Judiciary Committee in July 1993, she told the Committee why she could not “preview” her views on “questions” that might come before the Court:

It would be wrong for me to say or preview . . . how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Since then, “no previews, no forecasts, no hints” has been known as “the Ginsburg Rule.” Judge Amy Coney Barrett will likely follow it in her own confirmation hearings, as has virtually every nominee since Ginsburg, including John Roberts, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Some senators will likely still press Barrett on her views on past decisions, precedent, and other issues, of course.

Ginsburg’s rationale is strong enough in itself. But there are other reasons why a judge would refrain from previewing her views, as well.

For one thing, some precedents are unsettled, and will likely come back before the Court in the future. Respect for precedent is grounded in stare decisis et non quieta movere, the legal maxim that means “to stand by things decided, and not to disturb settled points.” To protect people’s rights and interests, the law should be settled. Settlement is the hinge of stare decisis. If a precedent is settled, the justices should need a compelling reason to overturn it. If a precedent is unsettled, it is not entitled to such respect.

Roe v. Wade is radically unsettled in 2020, as Susan Page of USA Today fairly conceded during the vice-presidential debate on Wednesday night. Other unsettled decisions include Hill v. Colorado, involving free speech, Lemon v. Kurtzman, involving the establishment of religion, and Employment Division v. Smith, involving the free exercise of religion. The Court will likely have the chance to reevaluate these decisions in future cases.

For another thing, there are good reasons why a judge may not know how she would apply precedents, and Justice Ginsburg touched on some of them in 1993.

First, lower court judges don’t have experience overturning Supreme Court decisions, because in our hierarchical judicial system, their job is to apply the Supreme Court’s decisions.

Second, judicial virtues such as impartiality and objectivity are qualities that we want to promote and preserve. All judges have beliefs and convictions that they have to set aside in deciding cases. Some doubt that judges really can be impartial and objective. But even to say that it is possible is not to say that it is easy. Judicial qualities are disciplines, and disciplines have to be actively and conscientiously practiced.

Third, judges decide cases, not abstract or hypothetical questions. Their job is to address facts, law, and the arguments of both parties in a concrete set of circumstances. Objectivity means letting each side’s attorneys fully argue the legal issues in question, and then looking at both sides of the case with a careful and penetrating eye in order to fully grasp it and understand the implications of ruling either way. Exactly what a judicial opinion says, how it is framed, the exact terms of the decision it conveys, and the remedy it mandates, may all well be shaped by the briefs and oral argument that typically come at the end of an appeal. A good judge should want to wait until she has studied the facts of a concrete case, studied the law, read the briefs, and heard from both sides, rather than speculating on abstract hypotheticals.

Fourth, the justices are required to take two oaths which reaffirm and formalize the virtues described above before assuming office. The constitutional oath confirms that they will “support and defend the Constitution of the United States against all enemies, foreign and domestic.” The judicial oath confirms that they will “administer justice without respect to persons, and do equal right to the poor and to the rich, and . . . faithfully and impartially discharge and perform all the duties incumbent upon [them] . . . under the Constitution and laws of the United States.”

These judicial virtues apply across the board, to all judges, in all cases, providing the foundation for a justice system that faithfully applies the Constitution, protects individual rights, and implements the rule of law and not the rule of persons. Judge Barrett’s critics would do well to remember that before reacting when she invokes the Ginsburg Rule at her confirmation hearings.