Don't Be So Sure a Justice Barrett Would Overturn Roe.
'She has already been called an extremist on questions of precedent. But in her writing, she has expressed a decidedly mainstream view.
As Amy Coney Barrett’s confirmation hearings begin this week in the Senate Judiciary Committee, there is little doubt that her views about judicial precedents will be prominently featured.
Democratic senators will ask how she thinks about stare decisis, the doctrine that courts should generally adhere to the principles they have announced in earlier cases. The concern underlying this line of questioning is, of course, whether a Justice Barrett would vote to overturn Roe v. Wade.
Judge Barrett’s views about stare decisis are probably not as decisive a signal for how she would treat the particular precedent of Roe as some might hope, or fear. Like other jurists, she thinks incorrectly decided precedents should sometimes be overruled, and Roe does not fall within the category of precedents that she thinks the court should definitely leave alone. But her general approach to precedent does not indicate that it should necessarily be overruled either.
Judge Barrett is already being denounced as an extremist on questions of stare decisis. But in fact, she is decidedly in the mainstream.
Most of the time, senators are working in the dark on this question when evaluating judicial nominees. Judge Barrett is different. As a judge on a federal circuit court, she has the job of adhering to and faithfully applying the precedents set by the Supreme Court, and she has done so. Lower court judges like her rarely have an opportunity to expound on stare decisis or demonstrate how deferential they might be to the work of past courts.
In this case, senators are afforded more information: The principle of stare decisis was at the center of much of Judge Barrett’s academic work before she was appointed to the circuit court in 2017.
Those writings do not reveal how a Justice Barrett would resolve any particular case, hot button or not, that might come before the court. But what those writings do clearly reveal is a scholar working diligently to pull originalists toward a more moderate position on questions of precedent. . .
Justice Scalia once characterized himself as a “fainthearted originalist” because there were some precedents he was not willing to overrule, even if they were clearly erroneous as a matter of constitutional interpretation. By contrast, Justice Clarence Thomas has won fans on the right by being less fainthearted when it comes to precedents he thinks were wrongly decided.
Justice Scalia was sometimes criticized as unprincipled in his approach to stare decisis, but Judge Barrett has argued that a principled defense can be built for Justice Scalia’s position, and in doing so she has argued that a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues.
Even an originalist judge, she believes, should frequently defer to what might be flawed precedents.'>>>
https://www.nytimes.com/2020/10/12/opinion/amy-coney-barrett-supreme-court-roe.html
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