Amy Coney Barrett’s Perspective On Roe v. Wade, Precedent & the Court’s Legitimacy

The 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:

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Isaac Schorr

Isaac Schorr is an editor at Mediaite and a 2023–2024 Robert Novak Journalism Fellow at the Fund for American Studies.

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The 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: