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Noah Feldman: Two questions for Amy Coney Barrett on precedent and Roe

By Noah Feldman, Bloomberg Opinion on

Published in Op Eds

I have always hated the Kabuki theater of Supreme Court confirmation hearings. But I can still dream that some judge, someday, might actually answer some interesting questions - although that does not seem like it will be happening this week. Nonetheless, there are at least two hard questions Judge Amy Coney Barrett should be asked about precedent - and that, in a sensible world, she would answer directly.

1. What is the difference between precedent and "super-precedent"? Is the right to abortion a super-precedent? And if not, why not?

The idea of super-precedent has never been used expressly in a Supreme Court opinion. Fifteen years ago, constitutional scholar Jeff Rosen traced the first judicial use to stalwart conservative Judge Michael Luttig, who wrote that Planned Parenthood v. Casey, which declined to overturn Roe v. Wade, had been meant by the Supreme Court "as a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy." Luttig's implication was that it should be even harder to overturn the abortion right than to overturn other well-established precedent.

Sen. Arlen Specter asked then-Judge John Roberts about the idea at Roberts's confirmation hearings. Roberts was careful, embracing the idea of precedent without the word "super."

In Tuesday's hearings, Barrett said that Brown v. Board of Education is a "super-precedent ... that is so well-established that it would be unthinkable that it would ever be overruled." She also pointed to several other super-precedents, like Marbury v. Madison.

So it would be right to press Barrett on why the Roe v. Wade decision, now nearly 50 years old, should be any different.

The main argument that Roe should not be treated as a super-precedent would be that the Roe decision has had lots of critics over the years, suggesting its overruling wouldn't be "unthinkable." This is an argument raised by center-left law professor Michael Gerhardt, whose point was cited in a footnote to an article that Barrett co-authored about super-precedents in Congress.

Yet Brown v. Board also had its critics for decades - and indeed, Brown was met with massive resistance from white Southern segregationists that went far beyond the efforts of the pro-life movement.

Perhaps the deeper question is how an originalist like Barrett can believe in super-precedent at all, given that it isn't in the Constitution.

2. Are you a "faint-hearted originalist" like Justice Scalia when it comes to precedent that, in your opinion, contradicts the original meaning of the Constitution?

Barrett clerked for the late Justice Antonin Scalia, who described himself as a "faint-hearted originalist" in a speech Barrett has quoted in an essay on originalism. As Barrett described it, Scalia meant that he "would abandon the historical meaning when following it was intolerable" because it led to a contradiction with precedent.

In the essay, Barrett explores the "tension" between originalism as a theory of constitutional interpretation and the judge's obligation to follow precedent. The basic problem is that originalism claims to interpret the Constitution based on its original meeting as of the time of ratification. But precedent reflects decades of judicial interpretation of the Constitution - a process undertaken, in many cases, by justices who actually themselves did not practice originalism. Thus we can get conflict between judicial precedent and what the 18th century framers may have meant when they wrote our founding documents.

Scalia's answer to that tension was to treat following precedent as a "pragmatic" exception to originalism. That approach led to stands for which he was harshly criticized by some conservatives. In her essay, Barrett defends Scalia by describing his approach as more principled than he himself presented it as being.

 

She should be pressed on the arguments in that article. She maintains that it's rare for justices to be asked to overrule major, important precedents. But she never confronted the reality that when they are, the stakes are enormously high.

That was the case in Brown v. Board of Education, where the court had to overrule a precedent, Plessy v. Ferguson, that was more than half a century old at the time. And it would also be the case if - as seems inevitable if she is confirmed - a state legislature passed a law flatly contradicting Roe v. Wade.

Barrett wrote that Scalia never voted to overrule a super-precedent (there it is again!). But she didn't consider what Scalia's pragmatism would have said when a case, like Roe, is considered a super-precedent by some but not by others.

Barrett's final suggestion in her essay is that it might be possible to reconcile originalism and precedent by assuming that precedents a judge doesn't much like are nevertheless good law without saying so explicitly. This is a fascinating suggestion for considering how she might engage Roe v. Wade. Barrett should be asked about whether it would be right for her to take all possible steps to avoid having to overturn even a precedent with which she disagreed.

The point of these questions - in my fantasy - would be to reveal the content of Barrett's beliefs about how to manage the hardest questions in constitutional interpretation, which is what confirmation hearings ideally would be all about.

These hearings offer a rare opportunity to discuss our Constitution and the real-world consequences of its interpretation. They should be so much more than theater.

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ABOUT THE WRITER

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."

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