The Trump Supreme Court pick who'd pose the biggest danger to abortion rights

Ruth Marcus on Jul 5, 2018

"I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it," Barrett wrote in 2013.

In a 2003 article, Barrett called for a more "flexible" understanding of stare decisis, arguing that courts should be less focused, in deciding whether to overrule a case, on so-called reliance interests -- the degree to which a decision has been woven into the settled expectations of those affected.

When "a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent," she writes. "Reliance interests count, but they count far less when precedent clearly exceeds a court's interpretive authority."

Reliance interests like, say, what the court plurality relied on in 1992, in deciding not to overrule Roe: "for two decades, ... people have organized intimate relationships ... in reliance on the availability of abortion in the event that contraception should fail."

Maybe a Justice Barrett would be more cautious than Notre Dame Law School Professor Barrett sounds. Maybe the chief justice would be reluctant to pull the trigger on Roe with just five votes. But this is already a court that has proved its willingness to overrule inconvenient precedents by a single vote. Adding Barrett would pose a clear and present danger to abortion rights.

"However cagey a justice may be at the nomination stage," Barrett observed in 2013, "her approach to the Constitution becomes evident in the opinions she writes." By then, of course, it would be too late.

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Ruth Marcus' email address is ruthmarcus@washpost.com.