No Respect

Susan Collins wants a Supreme Court nominee who would uphold Roe v. Wade. Amy Coney Barrett thinks it’s fair game for reversal.

Susan Collins, Amy Coney Barrett.
Susan Collins, Amy Coney Barrett. Photo illustration by Slate. Photos by Al Drago-Pool/Getty Images and University of Notre Dame/Handout via Reuters.

Sen. Susan Collins says that she will not support a nominee to fill Justice Anthony Kennedy’s seat on the Supreme Court whose “judicial philosophy does not include a respect for established decisions [and] established law.” Collins also says that she “could not support” a nominee who “has demonstrated hostility to Roe v Wade,” which she describes as “established as a constitutional right for … 45 years [since Roe was decided] and … reaffirmed 26 years ago” by Kennedy in Planned Parenthood v. Casey.

If Collins, who may hold the deciding vote on Donald Trump’s nominee, sticks to this position, then she cannot support one of Trump’s leading candidates to replace Kennedy on the high court, 7th U.S. Circuit Court of Appeals Judge Amy Coney Barrett.

Barrett—who, until Donald Trump recently named her to the federal appellate bench, was a leading conservative law professor—has made it plain that she disagrees with Collins, as well as Kennedy, that Roe should be protected from nullification by the judicial doctrine of stare decisis, or respect for precedent.

By 1992, after Reagan nominees Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor and George H.W. Bush nominees Clarence Thomas and David Souter had joined the court, many believed that a majority was poised to overrule Roe v. Wade, which had been a stated goal of both Republican presidents.

It therefore came as a surprise when three of the Republican appointees, O’Connor, Kennedy and Souter, jointly authored a plurality opinion in Casey that reaffirmed Roe. The principle of stare decisis was central to the reasoning of Kennedy and his colleagues, who stated:

overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.

Kennedy and his colleagues did not state that they would have decided Roe the same way had they been members of the Roe court 19 years earlier; rather, they reasoned that discarding the precedent would be unfair to women who had come to rely “on the rule’s continued application.” They also emphasized that rejecting such a “watershed decision … on which the Court staked its authority in the first instance” could appear to be a “surrender to political pressure,” and thereby place the Supreme Court’s own legitimacy at risk.

Barrett could not disagree more with Kennedy. In fact, she has singled out his Casey opinion for criticism.

In her scholarship, Barrett has discounted the importance of stare decisis in constitutional cases, explaining that she “tends to agree with those who say that a justice’s duty is to the Constitution,” not to precedent. Accordingly, it is “more legitimate for [a justice] to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

Directly disagreeing with Kennedy, Barrett also rejects the proposition that the Supreme Court risks its institutional legitimacy by making major changes in its constitutional jurisprudence with shifts in the membership of the court. Indeed, she goes so far as to suggest that overruling precedents actually adds to the nation’s confidence in the Supreme Court, since it confirms that “justices [are] decid[ing] cases based on their honestly held beliefs about how the Constitution should be interpreted.”

Barrett does acknowledge that a small list of constitutional decisions, including Marbury v. Madison and Brown v. Board of Education, are “superprecedents” that are effectively immune from overruling.

But on Barrett’s account, a precedent does not achieve and maintain superprecedent status because of how the justices view the decision but rather because of how it is viewed in the society.

According to Barrett, certain precedents are wholly noncontroversial because there is no significant constituency for doing away with them. Since these precedents are accepted, states and citizens do not file, and lower court judges do have occasion to hear, cases challenging them, thereby placing them on the superprecedent list.

Barrett has repeatedly stated, however, that in her view, Roe is not a superprecedent because “public controversy” regarding the precedent has not abated. That is, because there remains an active anti-abortion movement that has relentlessly challenged women’s right to choose since Roe was decided, the precedent is not immune from being overruled.

The most revealing part of Barrett’s analysis is not her reference to Roe itself but rather to Kennedy’s opinion in Casey.

Barrett, not a little bit derisively, describes Kennedy’s opinion as a failed attempt to establish Roe as a superprecedent “by ipse dixit”—that is based on a dogmatic and unproven statement. On Barrett’s account, Kennedy tried to declare Roe to be a superprecedent—and thereby place it out of bounds for a future overruling—but failed, because the anti-abortion movement has not given up on nullifying it.

Thus, while Kennedy focused on the millions of women who had come to rely upon the existence of constitutional right to control their bodies, Barrett focuses on the fact that others have never given up on taking away that right.

Barrett’s position is as square a rejection of Collins’ position that Roe v. Wade is “settled law” as one can imagine. By asserting that Kennedy vainly tried to place Roe on the superprecedent list by “ipse dixit,” Barrett has made it plain that, in her view, Roe will immediately become fair game for nullification should the court come to have a majority of justices whose personally defined “duty to the Constitution” leads them to conclude it was wrongly decided.

Indeed, given her general skepticism of the value of stare decisis, we can expect a Justice Barrett to vote in favor of overruling most any precedent that comes before the court with which she disagrees, leaving the nation fully subject to Barrett’s “duty to the Constitution,” however she may define it. Therefore, if Collins makes good on her promise to insist that any Trump nominee to the court respect precedent, it is not even a close call. She could not support Barrett’s nomination.