After spending hours brushing aside Democratic questions about her personal judicial opinions, Judge Amy Coney Barrett made a meaningful admission on Tuesday afternoon: that she did not view Roe’s landmark decision against Wade on abortion as a settled legal issue, or a “super precedent,” to the United States Supreme Court.
Although Barrett has not indicated that she intends to vote to cancel Roe if given the opportunity, she has opened a door that President Trump’s two previous candidates for the Supreme Court of the United States did not. In 2018, Justice Brett Kavanaugh said during his confirmation hearing that Roe was “precedent over precedent” and “set as a Supreme Court precedent”. In 2017, Neil Gorsuch didn’t call Roe a super-precedent, but also said he sees it as a settled issue.
Meanwhile, Barrett, when interviewed by Senator Amy Klobuchar (D-MN), said differently on the second day of her confirmation hearings. She defined the super-precedent as a question “so well settled that no political actor pushes further rejection”.
“Roe isn’t a super precedent,” Barrett said, “but that doesn’t mean it should be canceled. It just means it doesn’t fall under the small handful of cases like Marbury v. Madison and Brown. against Council that no one questions.
Barrett’s articulation would therefore indicate that she believes the super-precedent standard in the High Court cannot be met as long as that precedent is actively challenged. And anti-abortion groups have undermined rulings upholding the right to abortion for years and made no secret of their desire to secure a court that fires Roe completely.
These groups rallied around Barrett’s confirmation, and while she did not personally articulate a legal rationale for overthrowing Roe, she aligned with anti-Roe views in the past and is known as an arch-conservative jurist. and a legal thinker.
The exchange between Klobuchar and Barrett produced the first new insight into the judge’s opinions on an issue central to the issues at stake in his confirmation fight – or one of his views, for that matter. During six hours Tuesday, Barrett pushed back Democrats’ attempts to get answers from her on how she sees the legal status of the Affordable Care Act, Gun Rights, Voting Rights, abortion and other key issues. She did so by citing the so-called “Ginsburg Standard,” set by the late Judge Ruth Bader Ginsburg, who during her confirmation hearing declined to see how she could address key issues on the bench.
Klobuchar was able to squeeze through this defense by asking Barrett about something she wrote in a legal journal, set aside as fair game for questioning, and leveraging that to ask a question about Roe, as well as several other key cases. Barrett refused to enter these.
“It remains for me to look at the tracks on the record and where it takes the American people, and I think it leads us to a place that will have serious repercussions for them,” Klobuchar concluded. “Thank you.”
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