But after hours of pulling teeth, Sen. Amy Klobuchar (D-Minn.) might have moved the needle a bit.
Under questioning from Klobuchar, Barrett seemed to align (or at least sympathize) with scholars who don’t regard the landmark abortion case Roe v. Wade as a “super-precedent” — i.e., a precedent that the Supreme Court could never overrule. And in doing so, Barrett appeared to go somewhat further than she has previously, particularly in her 2017 confirmation hearings for a federal appeals court seat.
Here’s the exchange, in which Klobuchar asked Barrett about Barrett having excluded Roe from a list of “super-precedents” in the past (the key parts are bolded):
KLOBUCHAR: Is Roe a super-precedent?BARRETT: How would you define “super-precedent”?KLOBUCHAR: I actually might have thought someday I’d be sitting in that chair. I’m not. I’m up here. So I’m asking you.BARRETT: Okay, well, people use super-precedent differently.KLOBUCHAR: Okay.BARRETT: The way that it’s used in the scholarship and the way that I was using it in the article that you’re reading from was to define cases that are so well-settled that no political actors and no people seriously push for their overruling. And I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category. And 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. I don’t —KLOBUCHAR: So here’s what’s interesting to me: You said that Brown [v. Board of Education] is ... is a super-precedent. That’s something the Supreme Court has not even said, but you have said that. So if you say that, why won’t you say that about Roe v. Wade — a case that the court’s controlling opinion, in that Planned Parenthood v. Casey case, has described as a super-precedent? That’s what I’m trying to figure out.BARRETT: Well, senator, I can just give you the same answer that I just did. I’m using a term in that article that is from the scholarly literature. It’s actually one that was developed by scholars who are, you know, certainly not conservative scholars — who take a more progressive approach to the Constitution. And again, you know, as Richard Fallon from Harvard said, Roe is not a super-precedent because calls for its overruling have never ceased. But that doesn’t mean that Roe should be overruled; it just means that it doesn’t fall on the small handful of cases like Marbury v. Madison and Brown v. the Board that no one questions anymore.
Note that Barrett didn’t specifically say that Roe wasn’t a super-precedent by her own definition. She continually frames things as being about other scholars’ definitions. There’s plenty of plausible deniability built into it.
This is also a question Barrett faced in her 2017 hearings, and she dealt with it somewhat differently then. While also specifying that her past writings relied upon others’ definitions, she repeatedly returned to the idea that, for the job she had been nominated to, there was no difference between precedent and super-precedent: An appeals court judge must abide by all precedent, regardless.
“That wasn’t my list,” Barrett said at the 2017 hearing. “I was addressing arguments that had been made by other professors — serious, well-respected scholars like Richard Fallon at Harvard and Michael Gerhardt at North Carolina. And it wasn’t my list. I was quoting them, and I was quoting their definition of super-precedent.”
She added: “One thing I would observe is that, for a court of appeals, all Supreme Court precedent is super-precedent. So as I had said to Chairman [Charles] Grassley, as a court of appeals judge, if I were confirmed, I would follow all Supreme Court precedent without fail.”
At another point, Barrett acknowledged that other definitions might include Roe as a super-precedent.
“If you use a different definition of super-precedent — for example, a precedent that’s more than 40 years old and that has survived multiple challenges, then I would include Roe on that list,” she said.
The answer completely suited the venue in which Barrett found herself; it assured Democrats that she wouldn’t seek to overturn Roe as an appeals court judge (as if she even could). But it didn’t address how she might view the precedent once she did have the power to overturn Roe, which is the scenario she now faces. And the fact that she chose that particular definition in her writings — rather than the other one she mentioned in her 2017 hearing — could certainly be viewed as instructive.
It’s also worth noting that the alternative definition is one that other Trump Supreme Court nominees leaned into. Neil M. Gorsuch also declined to definitively label Roe a “super-precedent,” but he emphasized when asked in 2017, “It has been reaffirmed many times, I can say that.” A book that he and fellow Trump nominee Justice Brett M. Kavanaugh co-authored also referred to Roe as a super-precedent because of that, as The Post’s Seung-Min Kim noted Tuesday. And Kavanaugh, too, referred to the Casey and Roe rulings as “precedent on precedent.”
Klobuchar also had a valid point that Barrett was willing to call Brown a super-precedent but left that question open when it comes to Roe. She didn’t qualify Brown as being a super-precedent according to others’ definitions.
There may not be a ton of daylight between how Barrett, Gorsuch and Kavanaugh answered these questions, but Barrett’s past reliance on a definition that excluded Roe from the ranks of super-precedents made this a more difficult needle to thread. And her answers suggest that might be the definition with which she most associates — more so than Gorsuch and Kavanaugh did, at least.
This will certainly be something Democrats want to probe further.