It’s that time in constitutional politics again: Everyone is talking about precedent.
Amy Coney Barrett and her Senate interlocutors can’t seem to stop discussing stare decisis, the principle that the Supreme Court should show respect for its own past decisions. Barrett has fielded questions about what she meant when she called some cases super-precedents (Roe v. Wade was noticeably absent from the list). Almost quoting her mentor, Antonin Scalia, she insisted that she had no agenda when it came to abortion (or the Affordable Care Act) and would take the Court’s precedents seriously.
Does anyone in the Senate really care that much about the concept of stare decisis? Not exactly. When senators and the nominee herself talk about stare decisis, they are deploying something like a secret code—a shorthand for how to interpret specific, explosive decisions, such as those about gay rights, health care, and, most of all, abortion.
Decoding all the talk about precedent at this week’s hearings might not seem worth the trouble. If Barrett pledges her respect for precedent, she could nevertheless reverse course as soon as she is on the Court. But given how little she is saying otherwise—ever since the doomed Supreme Court nomination of Robert Bork, candidates like Barrett have gone out of their way to avoid unnecessary controversy during their confirmation hearings—Barrett’s talk about precedent might be the most revealing statements to come out of the entire process.