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.
That’s because precedent—what it is and when to respect it—is at the heart of the debate over whether to overturn landmark progressive victories such as Roe and Obergefell v. Hodges. The Court’s conservative majority is not likely to be sympathetic to the idea of a constitutionally protected right to abortion, contraception, or same-sex marriage. But jurists such as John Roberts and Brett Kavanaugh care about the Court’s reputation and might not want to risk the kind of backlash that could follow the overruling of those decisions.
For that reason, progressive social movements have sharpened their demands that the Court respect its precedents and save its reputation for being above the political fray. Conservative movements have responded by stressing that some precedents are so shoddy—and so socially destructive—that they don’t count as settled law (and thus don’t deserve any respect at all).
Settled law, too, is part of that coded lexicon. In theory, a settled precedent has lots of ingredients: It is not unworkable or impossible for lower courts to apply. It’s not wrongly decided (or at least not ridiculously so). Ordinary Americans rely on it in organizing their lives.
But when it comes to Roe, conservatives mean something else entirely. Anti-abortion-rights activists say Roe is unsettled because the Court failed to put an end to the abortion wars. All such activists (and most Republicans) hate Roe. According to the anti-abortion-rights movement, that’s all the proof you need that it’s unsettled. And these activists say that Roe’s other consequences have been catastrophic. The movement blames Roe for distorting other legal rules, polarizing American politics, and poisoning the process of Supreme Court nominations. You can’t have a settled decision at the heart of the culture wars. Or at least that’s the argument conservative movements are making.
It’s not the easiest argument to swallow. The Court hasn’t historically rejected precedents simply because a decision did not put an end to a major culture war. There’s no reason to change that now. The Court has generally not moved too much away from public opinion, and when it has, the justices have triggered some powerful backlash. Roe failed to the settle the abortion wars, yes. But, whether for or against abortion rights, no Supreme Court decision will put an end to conflicts about reproductive rights. Will a conservative Court reexamine its gun-rights decision, District of Columbia v. Heller, because gun laws are still divisive? What about Citizens United v. Federal Election Commission, the Court’s ruling that opened the door to uncapped corporate spending? If the Court treats Roe as especially unsettled, that decision will appear hypocritical, if not outright partisan.
Now conservatives are arguing that Obergefell is unsettled too. Just this month, Justices Clarence Thomas and Samuel Alito dissented from the Court’s decision not to hear the appeal of Kim Davis, the Kentucky woman who famously refused to provide marriage licenses for same-sex couples. Thomas and Alito suggested that Obergefell should be consigned to the dustbin because of its disastrous consequences—the decision enabled “courts and governments to brand religious adherents who believe marriage is between one man and one woman as bigots.” Thomas and Alito are not alone in talking up the real-world consequences of precedent. Kavanaugh, who might be the Court’s new swing vote on abortion, has said that the effects of a decision should be a major factor in whether the Court casts it aside.
Anyone watching Barrett’s confirmation hearings would be forgiven for thinking all of the talk of precedent will not amount to much. Kavanaugh’s reassurances to Senator Susan Collins that he would preserve Roe have become something of a running joke. Scalia talked a good game during his confirmation hearings, promising that he had no agenda when it came to abortion. Yesterday, when talking about abortion and the Affordable Care Act, Barrett used almost the same words. After Scalia’s confirmation, he called for the overruling of Roe the first chance he got. There’s nothing stopping Barrett from doing the same.
Yes, confirmation hearings are highly choreographed and almost information-free, and the outcome looks like a foregone conclusion. And yes, Supreme Court justices can surprise us after they are on the bench. But once in a while, some hint of a new justice’s plans might come through, despite the best efforts of the nominee and the Republicans rushing to confirm her. Barrett might be happy to call Roe, Obergefell, or Planned Parenthood v. Casey precedent, but she won’t call them settled law. That’s not an accident. Conservative social movements know the difference between the two, and when Barrett joins the Court, they will celebrate.