One of the preemptive criticisms I’m seeing leveled against Amy Coney Barrett is that she is “opposed to” the maintenance of precedent. Yesterday, Chuck Schumer suggested that Barrett “disagrees with ‘stare decisis’ — the idea that cases like Roe v. Wade are settled law in the courts — and instead has said she wants ‘space’ for ‘reargument.'” In the Los Angeles Times today David Savage joins this line of attack, complaining that “Judge Amy Coney Barrett, a potential Supreme Court nominee, has defended overturning precedents.” If Barrett is the nominee, expect to see this idea promulgated widely.
This charge is a peculiar one. Everybody is fine with the overturning of precedent — the question, as ever, is which precedents qualify, and on what rationale — and among “everybody” is Chuck Schumer, a man who supports all of the precedent-overturning that was done during the New Deal and by the Warren Court; who was thrilled when the Court overturned Baker v. Nelson; and who presumably does not feel that Brown v. Board of Education was an outrageous usurpation of the standard set in Plessy, or that Korematsu should be preserved in aspic. During his speech to the Democratic Convention in 2016, Bernie Sanders went so far as to promise that, if elected, “Hillary Clinton will nominate justices to the Supreme Court who are prepared to overturn Citizens United.” Far from being horrified, the audience clapped and cheered. The only thing that has changed since then is that the president is now a Republican.