Roe v. Wade was an erroneous decision—indeed, that is a gross understatement. I hope that whoever replaces Justice Kennedy on the Supreme Court agrees with my view and, further, will conclude that its erroneousness outweighs the value of sticking with precedent and so vote, if an appropriate case comes before the court, to overturn it.
Does Judge Amy Coney Barrett agree with me about whether Roe was erroneously decided and should be overruled? In a June 28 story for the Los Angeles Times, David Savage wrote that “[i]n a 2003 scholarly article, she suggested Roe vs. Wade was an ‘erroneous decision.’” Again, I hope she thinks that. But as Ed Whelan pointed out, Savage is wrong about that 2003 article. In that article, she wrote, “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” (footnotes omitted). A footnote to the second sentence cites passages from both the plurality opinion and a dissenting opinion in Planned Parenthood v. Casey, an abortion case from 1992. Both opinions are prominent examples of the point she made: Courts have considered these questions. That’s why she cited them.
The Los Angeles Times has not run a correction to this story, but should.
In a new article, Savage claims that Barrett has “said the high court should be more open to overturning precedent.” Presumably, he means “more open than it currently is”; his article does not make sense unless he does. Savage’s evidence is a 2013 law-review article of hers. But that article does not say what Savage suggests.
The article argues that the Supreme Court has a tradition of practicing a “weak” version of stare decisis in constitutional cases: There is a presumption in favor of precedent but it can be overcome. She defends this tradition against critics who want a stronger version of the practice. Thus she is not saying that the court should be “more open to overturning precedent” than it already is.
Savage uses two passages from the 2013 article to make his case. First, Barrett writes about the idea that a court should stick with precedent in order to protect its own reputation. She writes that “even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage. Stare decisis is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent. Still, public confidence in the Court remains generally high” (footnotes omitted). The passage is defending the Court’s general approach, not recommending a change in it.
In a second passage, Barrett responds to the idea that the Court needs to practice a stronger form of stare decisis than it does in order to protect its legitimacy. She argues that legitimacy is a reason for a justice to follow “the Constitution rather than a precedent she thinks clearly in conflict with it.” This is a qualified claim: She writes that she “tends to agree” with it. She immediately follows this thought with a reminder that “constant upheaval in the law would disserve rule-of-law values.” The paragraph concludes by noting that the practice of the Supreme Court has been to avoid constant upheaval and rigid application of precedent, and instead to treat “departing from precedent as a permissible move, albeit one that should be made only for good reason.” Again, the passage does not support Savage’s characterization of Barrett’s views.
Barrett’s views on precedent are under scrutiny mostly because of one precedent: Roe. Senator Susan Collins (R., Maine) has said that she would like to see the Supreme Court continue to treat abortion as a constitutional right and wants a nominee who believes in respecting precedent. Barrett has expressed wholly conventional, albeit thoughtfully developed and expressed, views on the force of precedent. Savage is being misleading in claiming otherwise.