Shortly before the 2016 election, Professor Amy Coney Barrett, in an article co-authored with another Notre Dame professor, John Copeland Nagle, offered a view about the discussion of cases in judicial confirmation hearings. “Constitutional adjudication,” she said in an article entitled “Constitutional Originalism,” “is not like a confirmation hearing, in which answering hypothetical questions about particular precedents is par for the course.”
That was then. How could Coney Barrett have known that Donald Trump would eke out a minority win and turn to her as his proxy to roll back precedents like National Federation of Independent Business v. Sebelius or Roe v. Wade? If she had known that such a prize awaited her grasp, surely, she would have hedged.
Hedging, the nation learned on Wednesday, is an important part of her skill palette. In a dramatic colloquy with Sen. Richard Blumenthal (D-Conn.), she answered questions about some precedents. Brown v. Board of Education, with its ban on school segregation by law? Correctly decided, she said. Loving v. Virginia, with its ban on “miscegenation” and “racial integrity” laws that forbade interracial marriage? Correctly decided.
Griswold v. Connecticut, which said that the right of privacy means states cannot make it a crime for married couples to use contraception?
Judge Barrett?
No, she said. It would be improper for her to give an opinion on that precedent. Sen. Blumenthal pointed out that, in their confirmations, Justices Anthony Kennedy, John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan had freely answered the same question. Barrett would not be moved. But not to worry, she said, “I think that Griswold is very, very, very, very, very, very unlikely to go anywhere.” For that to happen, she explained, a legislature would have to outlaw contraception, and a lower court would have to uphold the ban.
To be brutally frank, I am not comforted even by six “verys.” I hear behind those words the message, “Griswold is absolutely safe as long as no one brings us a good solid case that challenges it.”
For one thing, it is hard to overstate how radical the Republican majorities in some red states (such as her home state, Indiana, or her birthplace, Louisiana) are. Survey the spectrum of aggressive anti-abortion statutes they have passed. And of course, Griswold is the key precedent behind a number of rights, including the right to engage in consensual sex with a willing adult partner (Lawrence v. Texas) and to make the choice of abortion (Roe v. Wade, Planned Parenthood v. Casey, Whole Woman’s Health v. Hellerstedt, and same-sex marriage (Obergefell v. Hodges). Abortion restrictions and LGBTQ discrimination statutes aren’t hypothetical; they are already in the Court’s inbox. Barely a week ago, Justices Alito and Thomas, in a separate opinion, expressed the view that in Obergefell, the Court had created “a problem that only it can fix.”
The fact is that, from my reading of her work, Barrett’s theory of stare decisis is more radical than that of anyone now on the Court except Thomas, who simply doesn’t believe in any precedent he doesn’t like.
Barrett hasn’t gone that far. But in the essay, I quoted above, she explained her theory of “super precedent.” It’s a view that goes considerably above what I have seen anyone but Thomas embrace.
The term “super precedent” was coined by then-University of Chicago Professors Richard Posner and William Landes. It has become a general legal concept, most rigorously defined by University of North Carolina Professor, Michael Gerhardt, in his influential 2008 book, The Power of Precedent. They are
[c]onstitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently approved over significant periods of time. These are decisions which have been so repeatedly and widely cited for so long that their meaning and value have increased to the point of being secured by enduring networks. … These decisions are the clearest instances in which the institutional values promoted by fidelity to precedent—consistency, stability, predictability, and social reliance—are compelling.
Others quibble with this or that part of the definition, but the term properly applies to Griswold which struck down a state law barring the sale of contraceptives even to married couples. Contraception, in particular, and the entire realm of sexual privacy and autonomy, are critical to America’s existence as a free society in the year 2020.
Here’s a different definition offered by Barrett in her co-authored 2016 article:
Despite its usual framing as part of the stare decisis debate, the challenge that super precedent poses for originalism is not really one of stare decisis. Stare decisis is a self-imposed constraint on the Court’s ability to overrule its prior cases. Its constraint operates (or yields) when the Court is asked to overturn a precedent. In the context of super precedent, however, that question is never asked. If it were, the precedent would no longer be “super,” because the condition necessary for super precedent status—that its overruling be unthinkable—would no longer hold true. Stare decisis is not what holds a super precedent in place, for the force of a super precedent does not derive from the Court’s refusal to overrule it. Rather, it stays in place largely because it stays off the Court’s agenda.
This definition reminds me of the old joke that explains how to tell time with a stopped clock. All you have to do is watch the clock carefully, and at the very moment it is right, that is the correct time. By similar logic, you can tell a super precedent by the ones that are never challenged, but as soon as they are, they aren’t super anymore.
By that definition, Griswold may be safe … for the nonce. In the conservative playbook, first to fall would be Obergefell (perhaps not overruled but re-interpreted to provide same-sex couples with something like Ruth Bader Ginsburg’s “skim-milk marriage”). Then would come Casey and Roe, which will be overruled in all but name.
Then, given the hostility to contraception in parts of the right, and the nightmarish extremism of some of his lower-court judges, it will be time to serve up a juicy challenge Griswold. And for a host of other morality and religion-based restrictions on what was once known as the private realm.
There are legislators out there ready to move in that direction, and apparently, there will soon be a Justice ready to move with them.
