There's Nothing "Super" about Roe V. Wade

By Hatch, Orrin G. | Stanford Law & Policy Review, Winter 2018 | Go to article overview

There's Nothing "Super" about Roe V. Wade


Hatch, Orrin G., Stanford Law & Policy Review


INTRODUCTION

The "super precedent" argument is that Roe v. Wade is virtually immune from being overruled in the future because it has been reaffirmed so many times in the past. (4) Senator Arlen Specter (R-PA) presented this argument to three Supreme Court nominees before Senator Feinstein raised it in the Gorsuch hearing. On September 13, 2005, when he chaired the Judiciary Committee, Specter began his questions for Supreme Court nominee John Roberts by addressing "the issue of the woman's right to choose and Roe v. Wade." (5) His goal was to determine whether Roberts would, if confirmed, vote to overrule Roe. (6)

For as long as Supreme Court nominees have appeared before the Judiciary Committee, however, they have declined to discuss their views about issues that could come before them on the Court. The Judiciary Committee held its first public Supreme Court confirmation hearing in 1916. (7) Since then, 36 Supreme Court nominees have attended their hearings, (8) and 34 of them answered questions from committee members. (9) Of the 30 who were asked about their views on issues that could come before the Supreme Court, (10) 29 explicitly declined to discuss them. (11)

Perhaps anticipating that Roberts would take the same approach, Specter began "collaterally" (12) by discussing the "principles of stare decisis" (13) that the Supreme Court considers when deciding whether to overrule a precedent. Roberts discussed those principles generally (14) but declined to apply them to Roe v. Wade. (15) Failing to elicit Roberts' views about the validity of Roe v. Wade, Specter shifted to sharing with Roberts his own views on the subject by discussing "the concept of super-stare decisis." (16)

Specter used a chart titled "Supreme Court Decisions Upholding Roe v. Wade" (17) that, he said, listed "38 occasions where Roe has been taken up... with an opportunity for Roe to be overruled." (18) Specter asserted that by passing up these "38 chances to reverse it," (19) the Supreme Court had actually reaffirmed Roe v. Wade that many times, giving it the status of "super-duper precedent." (20) Later in the hearing, Specter went even further: "With the reaffirmation, [Roe v. Wade] may become a super-duper, or maybe even more, super-duper-duper [precedent]." (21)

Specter made the same argument a few months later to Supreme Court nominee Samuel Alito. On January 10, 2006, Specter again presented a chart listing "all 38 cases which have been decided since Roe, where the Supreme Court of the United States had the opportunity" to overrule it but did not do so. (22) Roe v. Wade, he said, is a particularly strong precedent because it has been "reaffirmed 38 times." (23) Alito declined to "get into categorizing precedents as super precedents or super duper precedents." (24)

On July 15, 2009, Specter presented the same argument to Supreme Court nominee Sonia Sotomayor. He stated "that the Supreme Court of the United States has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade" (25) and asked whether the Court failing to do so would "add weight to the impact of Roe v. Wade." (26) Sotomayor declined to address this issue specifically, saying only that "how the Court has dealt with [a precedent] in subsequent cases" would be one factor the Court would consider. (27) Asked whether the Court's decision in Planned Parenthood v. Casey, (28) which reaffirmed the "central holding" (29) of Roe v. Wade, was an example of "super-stare decisis," Sotomayor responded: "I don't use the word 'super.' I don't know how to take that word. All precedent of the Court is entitled to the respect of the doctrine of stare decisis." (30)

Senator Feinstein's statement in the Gorsuch hearing was the latest, but likely not the last, assertion of the "super precedent" argument, which has two premises. First, the argument says that each of these 38 or 39 cases properly placed "the Roe issue," (31) or the validity of Roe v. …

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