Opinions and Legal Insights

Barrett: There Is Nothing Super About The Precedent In Roe v. Wade

Below is my column in The Hill newspaper on Roe v. Wade and the doctrine of stare decisis (or the respect and preservation of precedent). One of the most notable moments in the hearing came when Judge Barrett suggested that Roe was not “super precedent.”  Indeed, she noted that the concept of “super precedent” is the work of others in academic publications. However, on Roe, Judge Barrett had an interesting exchange with Sen. Amy Klobuchar, D-Minn. in which she identified Brown v. Board of Education as such super precedent. However, when pushed on Roe, she noted  “I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall into that category.”

This issue was addressed in the column:

The story broke that Supreme Court nominee Amy Coney Barrett did not disclose that she spoke to antiabortion student groups in 2013. The only thing less surprising than a former academic not remembering two talks with student groups is that Barrett spoke to prolife groups. The news was about as earth shaking as discovering that Ruth Bader Ginsburg spoke to prochoice groups in 1973. Both jurists started their careers by writing and advocating on procreational issues from opposite sides. Yet this is all part of the theater of the absurd Senate confirmation process.

It is no secret that Barrett is prolife and a critic of Roe v. Wade. Much like Ginsburg, Barrett would come to the Supreme Court with defined and deeply considered views of jurisprudence. Unlike some former nominees, she is no work in progress. She comes fully formed as a legal intellectual. When Clarence Thomas was asked about Roe in his confirmation hearing, he said he really had not thought much about it. It was unclear whether it was worse that a nominee had not thought about a defining issue for the Constitution or was lying to avoid talking about his view.

Barrett has thought a great deal about Roe. She has written sophisticated articles on her objections to the ruling. The Supreme Court rejected much of the original rationale for Roe while still backing the protected right. But Barrett will likely decline to discuss it despite her view which is known and obvious. The reason is the justice she seeks to replace. Ginsburg declined to discuss her view of Roe in her confirmation hearing in terms of future decisions despite her written record supporting the case and the right to choose. It has become known as the Ginsburg rule. Now her likely successor will be asked to discuss the very same issue despite her own clear intellectual record.

What is frustrating about the Ginsburg rule is that it is only respected by the party supporting the nominee. Those in opposition will simply ask if Barrett will respect the precedent of Roe on the doctrine of stare decisis, under which the Supreme Court seeks to avoid overturning former cases. It is a curious demand if a nominee believes a case was wrongly decided and therefore violates the Constitution. A nominee takes the oath for the Constitution but then has to promise to ignore its meaning in preserving erroneous rulings. If Barrett believes Roe was wrongly decided, then she should vote with her conviction and with the Constitution.

Stare decisis is at times an absurd application in confirmation fights. After all, few people regret that the Supreme Court overturned cases like Plessy versus Ferguson that ended segregation, or Bowers versus Hardwick that ended criminalization of homosexuality. Those cases were rightly viewed by the overturning justices as wrongly decided under the Constitution. It is not to denote that stare decisis is invalid. It is valuable for the Supreme Court to maintain consistency and continuity in precedent.

This is notable in the interpretation of statutes, where Congress has the power to amend the law. The interpretation of the Constitution, however, is not subject to such legislative correction. This defines the fixed rights within our system, ensuring promises for citizens and states alike. With a significant issue like the existence of an individual right or state power, a justice must be guided by the meaning of the Constitution, regardless of how many justices had wrongly interpreted the issue before.

Stare decisis often seems honored more in the breach by justices in the majority and most often cited by justices in dissent. When they secure a fifth vote, justices often lose their adherence to precedent. Senators are also hypocritical with the doctrine. In the confirmation hearing for Brett Kavanaugh, Senator Sheldon Whitehouse demanded that he promise to respect stare decisis on cases like Roe, then called for overturning cases such as Citizens United versus Federal Election Commission.

Some insist their favored precedents be treated like “super precedents” that could never be overturned. While Barrett has noted the existence of such precedents, scholars disagree on which cases render such special consideration, and some disagree with the idea of inviolate cases if they are based on invalid interpretations. Would the same senators have told Ginsburg to ignore her view of the right to choose simply to preserve the precedent denying its existence? As a justice, you have a duty to respect the rights given for individuals or the states and not conveniently ignore the Constitution in the interests of the Supreme Court itself.

It is possible to support the right to choose and not Roe. Ruling that the Constitution does not create a protected right to an abortion would not mean that abortion would be illegal in the United States. It would be the matter of statutory law. The vast majority of states will likely protect the right to an abortion. Joe Biden made this point in a recent event. Asked what he would do if Barrett helped to reverse Roe, Biden said he would enact legislation that would make Roe “the law of the land.”

It is not clear how Congress would order states to allow abortions if the Supreme Court ruled it is not a right protected by the Constitution. That could force an administration under Biden on a collision course with the 10th Amendment and our federalism guarantees. But most states would reaffirm that, as a matter of the law, abortions are protected.

That is why we have to end the sham of stare decisis politics. A nominee should confirm that she will interpret the Constitution faithfully, even if it means overturning a historic case. To do otherwise sets an interest of the Supreme Court above that of the Constitution itself. While Barrett should refuse to answer on how she would rule on specific cases, she can affirm that she will faithfully interpret the Constitution. That is the principle she embraced in a former article where she wrote that a justice must decide “whether it is better for the law to be settled or settled right.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.