Last week, U.S. Senate Judiciary Committee members pressed Supreme Court nominee Amy Coney Barrett on whether the landmark abortion decision, Roe v. Wade, was a “super precedent.” You won’t find the justices using that term.
What you do find inside the current Roberts Court is often serious disagreement about when to stand by precedent, whether super or not. Still, super precedent is a term that has become part of the lexicon of the judicial confirmation process, particularly for Supreme Court nominees.
The late Pennsylvania Senator Arlen Specter was first to use the term as well as the term "super-duper precedent" during the 2005 confirmation hearings for then Supreme Court nominee John Roberts Jr. Specter was chairman of the Senate Judiciary Committee at the time and he asked Roberts if Roe v. Wade was a super precedent.
Roberts would only say that Roe was "settled as a precedent of the court." That answer wasn't what Specter was hoping Roberts would give. Although he didn't give a precise definition of super precedent, Specter, a strong supporter of abortion rights, clearly was suggesting that a super precedent, like Roe, was a decision more difficult to overturn than other precedents.
That same year, the National Constitution Center's own Jeffrey Rosen, then a law professor, wrote in an opinion article in The New York Times that the term super precedent had its origin in a 2000 appellate court decision in which then Judge Michael Luttig referred to Roe as having achieved "super stare decisis" in constitutional law because the justices had repeatedly reaffirmed it.
Since then, legal scholars have offered various definitions of the term, generally with similar characteristics. One constitutional scholar, Michael J. Gerhardt, has defined super precedent in this way:
“Super precedents are those constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time. Super precedents are deeply embedded into our law and lives through the subsequent activities of the other branches. Super precedents seep into the public consciousness, and become a fixture of the legal framework.”
Barrett, who was nominated by President Donald Trump following the death of Justice Ruth Bader Ginsburg, faced questions about super precedents and Roe because of a 2013 law review in which she discussed cases that were super precedents but did not include Roe. She did say that Brown v. Board of Education, which ended segregation of public schools, was a super precedent, explaining, "People consider that to be on the very small list of things that are so well established and agreed upon that calls for its overruling simply don’t exist."
But what about Roe, a precedent now 47 years old? Barrett said that in her article she defined super precedent to mean “cases that are so well settled that no political actor and no people seriously push for its overruling.”
“And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category,” Barrett continued. “And scholars across the spectrum say that doesn’t mean Roe should be overruled. But descriptively that does mean Roe is not a case that everyone has accepted and doesn’t call for its overruling.”
Her answers did not satisfy Democratic committee members who strongly support the right to abortion. And so that led to repeated questions about Barrett’s views of stare decisis. Barrett said little that differed from nearly every nominee since Roberts. Just like those prior nominees, she outlined the factors that the justices weigh when considering whether to overrule a precedent but gave no hint of where she would land if Roe were that precedent.
The division on the Roberts Court over the doctrine of stare decisis and how to apply it was vividly displayed two years ago in the 5-4 decision in the case, Janus v. American Federation of State, County and Municipal Employees. The question before the justices was whether to overrule a 1977 unanimous decision upholding under the First Amendment “fair share” fees paid by non-union public employees to unions representing them in collective bargaining.
Overruling that four-decade-old decision, Abood v. Detroit Board of Education, Justice Samuel Alito, for the majority, and Justice Elena Kagan, for the dissenters, went toe to toe on the stare decisis factors and reached dramatically different conclusions.
Alito said Abood was poorly reasoned; lacked workability; its underpinnings eroded by legal and factual developments, and reliance on the decision did not carry decisive weight. Kagan said Abood was embedded in the law; was affirmed and applied many times; its constitutional line between fees for collective bargaining activities and political activities had been workable, causing little problem in the courts, and 22 states had enacted statutes in reliance on it.
The court has overruled other precedents since that 2018 Janus decision and usually by divided votes. The Supreme Court in a 1991 decision said: “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.” But in the current division on the Supreme Court, it is often difficult to discern a principled basis for abandoning or following stare decisis.
Exactly where a Justice Barrett will stand in this ongoing debate remains to be seen but she will inevitably be tested and perhaps soon rather than later. The day after the presidential election the justices will hear arguments in Fulton v. City of Philadelphia, a religion clause challenge by Catholic Social Services to the city's non-discrimination policy on the placement of foster children. The city did not renew its contract with the agency when it discovered the agency does not place children with same-sex couples.
One of the questions before the justices is whether the court should overrule a 1990 decision by the late Justice Antonin Scalia. The case, Employment Division v. Smith, involved a free exercise of religion challenge by two workers who were fired and denied unemployment benefits for ingesting peyote, a hallucinogenic drug, for sacramental purposes in their Native American church.
The justices held that neutral laws of general applicability—here a prohibition on sacramental peyote use and denial of unemployment benefits to those discharged for its use—does not burden the free exercise of religion clause.
“We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," Scalia wrote. "On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
