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Opinion | Don’t Be So Sure a Justice Barrett Would Overturn Roe

As Amy Coney Barrett’s confirmation hearings begin this week in the Senate Judiciary Committee, there is little doubt that her views about judicial precedents will be prominently featured.

Democratic senators will ask how she thinks about stare decisis, the doctrine that courts should generally adhere to the principles they have announced in earlier cases. The concern underlying this line of questioning is, of course, whether a Justice Barrett would vote to overturn Roe v. Wade.

Judge Barrett’s views about stare decisis are probably not as decisive a signal for how she would treat the particular precedent of Roe as some might hope, or fear. Like other jurists, she thinks incorrectly decided precedents should sometimes be overruled, and Roe does not fall within the category of precedents that she thinks the court should definitely leave alone. But her general approach to precedent does not indicate that it should necessarily be overruled either.

Judge Barrett is already being denounced as an extremist on questions of stare decisis. But in fact, she is decidedly in the mainstream.

Most of the time, senators are working in the dark on this question when evaluating judicial nominees. Judge Barrett is different. As a judge on a federal circuit court, she has the job of adhering to and faithfully applying the precedents set by the Supreme Court, and she has done so. Lower court judges like her rarely have an opportunity to expound on stare decisis or demonstrate how deferential they might be to the work of past courts.

In this case, senators are afforded more information: The principle of stare decisis was at the center of much of Judge Barrett’s academic work before she was appointed to the circuit court in 2017.

Those writings do not reveal how a Justice Barrett would resolve any particular case, hot button or not, that might come before the court. But what those writings do clearly reveal is a scholar working diligently to pull originalists toward a more moderate position on questions of precedent.

If Judge Barrett is confirmed, she will join a small group of Supreme Court justices who are avowed originalists; they think that the meaning of the Constitution was fixed at the time of its adoption. As a former clerk to Justice Antonin Scalia, long the court’s most prominent originalist, Judge Barrett has often explored and refined the jurisprudential principles laid down by her former boss. When she has weighed in on points of disagreement among originalists, she has tended to push originalists toward the judicial mainstream. When evaluating the constitutionality of laws, where some originalists would argue that the courts should aggressively scrutinize every action that legislatures take, she has urged that judges adopt a more deferential posture. On stare decisis, she has urged giving precedents more weight than some originalists would prefer.

Justice Scalia once characterized himself as a “fainthearted originalist” because there were some precedents he was not willing to overrule, even if they were clearly erroneous as a matter of constitutional interpretation. By contrast, Justice Clarence Thomas has won fans on the right by being less fainthearted when it comes to precedents he thinks were wrongly decided.

Justice Scalia was sometimes criticized as unprincipled in his approach to stare decisis, but Judge Barrett has argued that a principled defense can be built for Justice Scalia’s position, and in doing so she has argued that a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues.

Even an originalist judge, she believes, should frequently defer to what might be flawed precedents. That is true for what are sometimes called “superprecedents” like the unconstitutionality of racial segregation and the constitutionality of paper money, but it is also true for many more ordinary precedents that might have been badly reasoned but that are now broadly accepted.

Some have suggested that it is a “bombshell” that Judge Barrett wrote in 2013 that the “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.” But outside the superheated environment of a Supreme Court confirmation fight, that statement is anodyne.

Is there any doubt that Ruth Bader Ginsburg likewise thought that precedents should fall when they conflict with her best understanding of the Constitution? Justice Ginsburg made her career by convincing the court to abandon precedents on the equality of women under the Constitution. As a justice herself, she voted with her colleagues to overturn precedents she thought were flawed. Justice Ginsburg would have almost certainly voted to overturn precedents that were set over her dissent, like Citizens United.

Far more interesting were Judge Barrett’s arguments for adhering to precedents, even when she thinks they are mistaken. In contrast to originalists like Justice Thomas, Judge Barrett embraced what she characterized as a “weak presumption of stare decisis.”

Notably, this was her language for describing the standard, mainstream position on stare decisis. She mounted a defense of the conventional view against, on the one hand, those who called on the court to give no real presumption to the validity of existing precedents and, on the other hand, those who favor a strong form of stare decisis in which the justices should almost never overrule the work of their predecessors.

Judge Barrett thought it “inevitable and probably desirable” that the justices be willing to sometimes overturn precedent, but they needed a brake that would slow them down from doing so too easily.

That brake can come from a presumption of stare decisis, albeit a weak one, which, she wrote, “disciplines jurisprudential disagreement,” and forces justices to explain not only why they have a better understanding of the Constitution than did their predecessors but also why their view of the Constitution “is so compelling as to warrant reversal” of the precedent. A new judicial majority can overturn existing precedents, but her view of stare decisis “makes it more difficult for them to do so” and tries to channel constitutional disagreements into a “less disruptive approach” than simply casting precedents aside.

All the justices must engage in the balancing act of trying to get the Constitution right while respecting the interests that have been built up around past decisions and the sincere disagreements that exist on the court and in American society.

Undoubtedly, not everyone will be pleased with how a Justice Barrett performs that balancing act. But if they are unhappy, it will not be because she has a radical view on the principle of stare decisis. On this issue, she has been a voice of moderation.

Keith E. Whittington (@kewhittington), a professor of politics at Princeton and a visiting professor at the Georgetown University Law Center, is the author of “Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.”

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