Supreme Court nominee Amy Coney Barrett on Tuesday said the Roe v. Wade decision that legalized abortion nationwide is not a “super precedent” of the court and also not “well-settled” like Brown v. Board of Education.
Barrett made the comments to Democratic Sen. Amy Klobuchar (Minn.) on the second day of questioning before the Senate Judiciary Committee, which is considering her nomination to replace the late Ruth Bader Ginsburg.
Klobuchar asked Barrett if Brown v. Board of Education – the 1954 case that ruled school segregation was unconstitutional – was precedent that “could be overruled.” Klobuchar was referencing a 2013 article by Barrett in the Texas Law Review that distinguished between “precedent” and “super precedent.”
Barrett called Brown “super precedent.”
“People consider it to be on that very small list of things that are so widely established and agreed upon by everyone,” Barrett answered. “Calls for its overruling simply don't exist.”
Klobuchar then asked her if Roe v. Wade, which was handed down in 1973, is super precedent. Barrett referenced her 2013 article, saying only about six Supreme Court cases can be called super precedent. Roe is not in that group, she said.
“People use super precedent differently. The way that it's used in the scholarship and the way that I was using it in the article that you're reading from, was to define cases that are so well-settled, that no political actors and no people seriously push for their overruling. And I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall in that category,” she said, referencing questions by multiple senators about the landmark abortion decision. “And scholars across the spectrum say that doesn't mean that Roe should be overruled. But descriptively, it does mean that it’s not a case that everyone has accepted and doesn't call for its overruling.”
After further questioning from Klobuchar on the issue, Barrett repeated her answer and referenced a quote from a Harvard professor.
“As [law professor] Richard Fallon from Harvard said, Roe is not a super precedent because calls for its overruling have never ceased,” Barrett said. “But that doesn't mean that Roe should be overruled. It just means that it doesn't fall on the small handful of cases like Marbury vs. Madison and Brown versus the Board that no one questions anymore.”
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.