18 October 2020
Well, in my writings, so as a professor, I talked about the doctrine of stare decisis, and super precedent is not a doctrinal term that comes from the Supreme Court and I think maybe in political conversation or in newspapers, people use it different ways. But in my writing, I was using a framework that’s been articulated by other scholars. And in that context, super-precedent means precedent that is so well established that it would be unthinkable that it would ever be overruled. And there are about six cases on this list that other scholars have identified.
—Amy Coney Barrett, 13 October 2020
Super-precedent is term that has been in the news this week, and it’s an excellent example of how a term’s meaning can change over time and how a term can mean different things to different people.
In deciding cases, judges are supposed to follow the rule of stare decisis, which is Latin meaning to stand by things that have been decided. In other words, judges are supposed to be guided by the decisions that courts have previously made. Overturning a precedent is not something to be done lightly.
The term super-precedent was first used in a law review article written by William Landes and Richard Posner in 1976, but they defined it quite differently than Judge Coney Barrett does in the above quote. Landes and Posner were trying to devise a framework to determine the relative importance of various cases, or in other words, how to measure how precedential a particular decision was. They considered using a count of the number of times a case is cited but rejected that. Landes and Posner write:
In some instances, counting citations may result in underestimating the true number of precedents by excluding the precedent that is so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place or, if they do arise, induces them to be settled without litigation. In the limit, such a “superprecedent” might never be cited in an appellate opinion yet have greater precedential significance that the most frequently cited cases. But such cases are probably rare.
Landes and Posner use super in its Latin sense meaning beyond. To them, a super-precedent is not a precedent of higher rank; it is a decision that is so fundamental that it cannot even be understood within the framework of precedent.
Linguistically though, Landes and Posner’s use is an outlier. Not only do they define it differently than later writers would, but the concept doesn’t appear again for nearly twenty-five years, when on 28 July 2000 Judge John Luttig raises it in a concurring opinion in Richmond Medical Center v. Gilmore. Luttig does not use super-precedent, but uses super-stare decisis instead, specifying that the abortion cases of Roe v. Wade and Planned Parenthood v. Casey are super-precedents and settled legal questions that should not be revisited by the courts:
I understand the Supreme Court to have intended its decision in Planned Parenthood of Southeastern Pa. v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned....After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.”). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart (“This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.”).
Luttig is not advancing the idea of a class of cases that cannot be revisited, but rather says that if courts have, over time, steadfastly refused to revisit a case, then it becomes a settled question. It should be noted that both Posner and Luttig were conservative, federal appeals court judges, now both retired.
But Luttig’s opinion brought the concept of super-precedent into conservative legal circles. It was an attractive concept, declaring a small number of cases off limits would allow judges to overturn those that were mere precedents, effectively gutting the concept of stare decisis while pretending to abide by it.
Super-precedent was used a number of times during the 13 September 2005 Senate confirmation hearing for Chief Justice John Roberts. In the following exchange between Roberts and Senator John Cornyn, the incoming chief justice seems to reject the notion of super-precedent, but states that Planned Parenthood v. Casey, and by implication Roe v. Wade, are not irrevocable decisions:
CORNYN. Well, I know that we have heard today about a number of terms from stare decisis to pro hac vice, to pro forma, to—the only one we have not heard is res ipsa loquitur and a number of other Latin phrases that we learned in law school. Let me ask you about stare decisis. I have heard fascinating discussion back and forth about precedent and how you would deal with a case, let’s say for example, Roe v. Wade, and some have suggested, law professors and maybe others, that somehow that is a super precedent, or in the words of our inimitable Chairman, a super-duper precedent. I think we are introducing new words to the legal lexicon as this hearing goes on. But in all seriousness, if—well, let me ask you this. Is stare decisis an insurmountable obstacle to revisiting a decision based on an interpretation of the Constitution?
ROBERTS. What the Supreme Court has said, in the Casey decision, for example, is that it is not an inexorable command. In other words, it’s not an absolute rule, and that’s why they have these various cases that explain the circumstances under which you should revisit a prior precedent that you think may be flawed and when you shouldn’t.
As Cornyn indicates, there was little agreement among the committee on what a super-precedent, or a super-duper precedent, was. But a concise definition would soon come. In a 2007 article in the George Mason Law Review, Michael Sinclair defines it as follows:
To say a case is a super-precedent means it is judicially unshakeable, a precedential monument which may not be gainsaid.
But while Luttig said that a court’s refusal to revisit a case is grounds for considering it a settled question, Sinclair disagrees, instead using a criterion of political opposition to a decision to determine whether or not it is a super-precedent:
Of course this discussion arises in the context of the right to terminate a pregnancy and the status of Roe v. Wade and its successor in principle, Planned Parenthood v. Casey. Some would like the sequence to be considered unchallengeable. But there is a significant portion of the population ardently against permitting a woman to control her own reproductive function, significant enough to influence elections. Judicial sensitivity to societal demands thus puts the adaptivity of Roe v. Wade in question as it is repeatedly challenged in state legislation. Thus it should not be called a super-precedent.
And Coney Barrett has followed Sinclair’s lead. She agrees with Sinclair’s definition in the quotation at the head of this article, and she also agrees that the two landmark abortion cases are not examples of a super-precedent. In this exchange with Senator Amy Klobuchar, she uses the same political criterion as Sinclair, not a legal one, to determine what is a super-precedent:
Klobuchar: Okay. Well, you also separately acknowledged that in a Planned Parenthood V Casey, the Supreme Court’s controlling opinion talked about the reliance interests on Roe V Wade, which it treated in that case, as super-precedent. Is Roe a super precedent?
Coney Barrett: How would you define super-precedent?
Klobuchar: Actually, I thought someday I’d be sitting in that chair. I’m not. I’m up here. So I’m asking you.
Coney Barrett: Well, people use super-precedent differently.
Klobuchar: Okay.
Coney 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.
Super-precedent has evolved. From 1976 into the 2000s the term was defined by a judicial criterion of whether or not courts chose to revisit and question past decisions. If the courts did not, then over time it would become a settled question, a super-precedent. But in the early 2000s the criterion shifted to a political one, whether or not a decision was popular, and decisions that faced political opposition were fair game for courts to overturn, while courts could not touch popular decisions, regardless of whether or not they were based on sound judicial grounds. In 2005, the very idea of super-precedent was controversial, with John Roberts avoiding embracing the topic in his confirmation hearings, but by 2020, the concept was fully embraced by Amy Coney Barrett.
Sources:
“Amy Coney Barrett Senate Confirmation Hearing Day 2 Transcript.” Rev.com, 13 October 2020.
Landes, William M. and Richard A. Posner. “Legal Precedent: A Theoretical and Empirical Analysis.” The Journal of Law and Economics, 19.2, August 1976, 251. JSTOR Complete.
Richmond Medical Center for Women. v. James Gilmore, 219 F.3d 376, 376-77, U.S. Court of Appeals, 4th Circuit. 28 July 2000). Thomson Reuters Westlaw.
Sinclair, Michael. “Precedent, Super-Precedent.” George Mason Law Review, 14.2, Winter 2007, 365, 403.
Torrez, Andrew and Thomas Smith. “OA430: Amy Coney Barrett Is Terrible” (podcast). Opening Arguments, episode 430, 15 October 2020.
United States Senate, Committee on the Judiciary. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States. J–109–37, 109th Congress, first session, 12–15 September 2005, 270.
