Analysis | Amy Coney Barrett’s most telling exchange on abortion and Roe v. Wade

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KLOBUCHAR: Is Roe a super-precedent?

BARRETT: How would you define “super-precedent”?

KLOBUCHAR: I actually might have thought someday I’d be sitting in that chair. I’m not. I’m up here. So I’m asking you.

BARRETT: Okay, well people use super-precedent differently.


BARRETT: The way that it’s used in the scholarship and the way that I was using it in the article that you’re reading from was to define cases that are so well-settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category. And scholars across the spectrum say that doesn’t mean that Roe should be overruled. But descriptively, it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling. I don’t —

KLOBUCHAR: So here’s what’s interesting to me: You said that Brown [v. Board of Education] is … is a super-precedent. That’s something the Supreme Court has not even said, but you have said that. So if you say that, why won’t you say that about Roe v. Wade a case that the court’s controlling opinion, in that Planned Parenthood v. Casey case, has described as a super-precedent? That’s what I’m trying to figure out.

BARRETT: Well, senator, I can just give you the same answer that I just did. I’m using a term in that article that is from the scholarly literature. It’s actually one that was developed by scholars who are, you know, certainly not conservative scholars — who take a more progressive approach to the Constitution. And again, you know, as Richard Fallon from Harvard said, Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn’t mean that Roe should be overruled; it just means that it doesn’t fall on the small handful of cases like Marbury v. Madison and Brown v. the Board that no one questions anymore.

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