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.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular

White House

What Is Hillary Clinton Thinking?

When Homer Simpson looks in the mirror, he sees ripped chest muscles and arms like the trunks of beech trees. When Hillary Clinton looks in the mirror, she sees America’s sweetheart. She thinks: America adores me. She thinks: America already chose me to be president once! She thinks: Everyone is comparing me ... Read More
Law & the Courts

Grassley’s Kangaroo Court

So now it looks like next Thursday. On Judge Brett Kavanaugh’s manifestly meritorious nomination to the Supreme Court, what was supposed to be the vote out of the Senate Judiciary Committee this past Thursday now appears to be sliding into a hearing to be held next Thursday. Or, who knows, maybe a Thursday ... Read More
Law & the Courts

Censure Dianne Feinstein

Regardless of the fate of Brett Kavanaugh’s nomination, the Senate should censure the ranking Democratic member of the Judiciary Committee, Dianne Feinstein. Her deception and maneuvering, condemned across the political spectrum, seriously interfered with the Senate’s performance of its constitutional duty to ... Read More
U.S.

Are We on the Verge of Civil War?

Americans keep dividing into two hostile camps. It seems the country is back to 1860 on the eve of the Civil War, rather than in 2018, during the greatest age of affluence, leisure, and freedom in the history of civilization. The ancient historian Thucydides called the civil discord that tore apart the ... Read More