ACB Triggers the Left Over Response to Whether Roe Is Super Precedent

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Posted: Oct 14, 2020 7:30 AM
ACB Triggers the Left Over Response to Whether Roe Is Super Precedent

Source: Brendan Smialowsi/Pool via AP

Senators posed many questions to Judge Amy Coney Barrett about abortion on Tuesday, but it was during an exchange with Sen. Amy Klobuchar that the Supreme Court nominee gave a response that has liberals worried. 

Klobuchar asked Barrett whether she considers Roe v. Wade a “super precedent.”

The judge went on to define that as when a case is “so well-settled that no political actors and no people seriously push for their overruling.”

As she pointed out during the exchange, these are cases like Brown v. Board of Education and Marbury v. Madison.

“I'm answering a lot of question about Roe, which I think indicates Roe doesn't fall in that category,” she continued. “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." 

She noted that super precedent is an academic term developed by those who are "certainly not conservative scholars" and "take a more progressive approach to the Constitution."

Harvard Law professor Richard Fallon has said it does not fit into the category of being a super precedent because “calls for its overruling have never ceased," she said.

“That doesn’t mean that Roe should be overruled,” Barrett added. “It just means that it doesn’t fall in the small handful of cases … that no one questions anymore.”

The Left (and Never Trumpers) saw her response as a warning sign.