Bench Memos

Law & the Courts

False Claim on Judge Amy Coney Barrett on Roe v. Wade

A Los Angeles Times piece claims that Supreme Court candidate (and Seventh Circuit judge) Amy Coney Barrett, in her previous career as an academic, “suggested Roe vs. Wade was an ‘erroneous decision.’” But the “2003 scholarly article” that the piece refers to suggests nothing of the sort.

Here is the passage in the article (“Stare Decisis and Due Process”) that contains Barrett’s only use of the phrase “erroneous decision” (with my underlining):

The questions that traditionally have occupied courts and scholars with respect to stare decisis are systemic. Courts and commentators have considered the kinds of errors that justify or even require the overruling of precedent. They have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books.

To the last sentence is appended a footnote (footnote 70), which reads in its entirety:

See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 855-57 (1992) (holding that reliance on availability of abortion counts in stare decisis calculus); id. at 956-57 (Rehnquist, C.J., dissenting) (insisting that such abstract interests do not count); Michael J. Gerhardt, The Pressure of Precedent: A Critique of the Conservative Approaches to Stare Decisis in Abortion Cases, 10 Const. Comment. 67, 78 (1993) (claiming that reliance interests at stake in Casey were even greater than plurality imagined); see also A. Goldberg, Equal Justice: The Warren Era of the Supreme Court 74 (1971) (arguing that stare decisis should be strongest when overruling precedent would contract individual freedom and weakest when overruling would expand individual freedom), quoted in Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L. Rev. 401, 403 (1988).

As ought to be obvious in context, Barrett is citing competing opinions in Planned Parenthood v. Casey because they present different views “about the kinds of reliance interests that justify keeping an erroneous decision on the books.” Any scholar addressing the topic could reasonably be expected to do so. (Casey is of course widely cited in discussions of stare decisis.) Such a citation does not remotely “suggest” any view of the scholar on Roe.

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