Amy Coney Barrett Sees No ‘Superprecedent’ in Roe, and related stories

Sarah Silbiger/Pool via Reuters

She understands the value of precedent and stability but also recognizes that a justice’s fidelity must be to the Constitution, not mistaken past decisions.

The indispensable Ed Whelan wrote not one, not two, not three, but four Bench Memos last week about Judge Amy Coney Barrett’s views on stare decisis, the legal principle compelling judges to adhere to precedent. Whelan’s posts were mostly written as rejoinders to hysterical critics of Barrett who accused her of being “right of Antonin Scalia,” and a “vote for [Clarence] Thomas-style radicalism.” They shouldn’t threaten us all with such a good time.

Whelan convincingly reveals these accusations to be rooted in partisanship, not a fair reading of her record. Indeed, Barrett has written nothing to suggest that she believes in totally disregarding precedent. On the contrary, Whelan contends, she has defended “the Court’s existing ‘weak presumption’ of stare decisis” but has refrained from calling for a weaker presumption. For evidence of Barrett’s respect for precedent, Whelan quotes Barrett, who wrote in “Precedent and Jurisprudential Disagreement” that:

Justifying a decision to overrule precedent, however, requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.

Whelan, surely anticipating the concerns of conservatives who might worry that Barrett would allow erroneous precedent to stand in the name of stare decisis, notes that Barrett says in that same article that it is:

Amy Coney Barrett’s 2017 Responses Offer
Preview of Supreme Court Hearing

. . . 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. . . . If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.

He also points out that Barrett says in a footnote that “scholars do not put Roe [v. Wade] on the superprecedent list” since it is still the subject of so much public disagreement. Whelan’s efforts to assuage the fears of conservative court-watchers scarred by generations of disappointing nominees were reassuring, but my pessimism runs deep. Chief Justice John Roberts has been the most frustrating member of the existing conservative bloc, and his worst decisions have resulted from two flaws: His concern over the Court’s apparent instead of its actual legitimacy and his maddeningly selective belief in stare decisis.

Read the rest of the story HERE and follow links below to related stories:

Amy Coney Barrett’s 2017 Responses Offer Preview of Supreme Court Hearing

Amy Coney Barrett’s alignment with Scalia has implications far beyond Roe v. Wade

Amy Coney Barrett is not ‘wildly’ out of mainstream: Brit Hume

Amy Coney Barrett's record of advocating for limits to abortion rights

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