From a reader:
Jonah,
There is a notion of “superprecedent” in academic literature, though it appears in a somewhat technical area, and Roe v. Wade is about as far from a “superprecedent” as you can imagine. The notion, developed by legal scholars Richard Posner (now judge Posner) and William Landes, is an important qualifier in their use of “citation studies” to determine the relative influence of judges (and Justices) on the law. The premise of a “citation study” is that the more a judge’s opinions are cited, the more influential that judge is. (Posner does extraordinarily well on this score, by the way.) The “superprecedent,” however, is a kind of case that might throw off the results of a citation study in a way that would leave it misleading. If a case is so authoritative at resolving a legal dispute, so complete in its reasoning that no further disputes touching on the issue are likely to arise, then a VERY influential decision might go uncited in the future for lack of litigated cases that would produce such citations. (The only web-based article I could find discussing this notion is at http://www.yorku.ca/ohlj/PDFs/33.3/mccormick.pdf, see pages 458-459.)
Roe v. Wade is no such thing. Indeed, it is hard to imagine a Supreme Court decision that has had LESS success at settling the issue that it was supposed to decide. Far from ending litigation oin the subject of abortion, Roe has spawned numerous challenges to its direct holding, as well as a whole set of tangential issues concerning the scope of permissible regulation (short of outright ban) of abortion, as well as spinoff issues like the permissibility of outlawing sodomy and other matters of an “intimate” nature.
I think that Specter was TRYING to use the phrase “superprecedent” as it was meant — he was saying Roe so completely settled the question of the constitutional right to abortion that we should expect a new Justice to approach the subject aware that some rulings are off limits. But he’s just wrong.






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