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FOR IMMEDIATE RELEASE
October 13, 2020

Barrett Is Eager For The Opportunity To Overturn Precedent

At today’s hearing, Senator Hirono highlighted how Amy Coney Barrett has said that a Supreme Court justice should not be bound by court precedent in overturning landmark decisions, and Barrett has even suggested that she is eager for the opportunity to roll back decisions that she views as incorrect.

Barrett argued that justice should not be bound by court precedent in deciding whether to overturn landmark decisions.
Washington Post: “Amy Coney Barrett, a leading contender to fill the upcoming vacancy on the U.S. Supreme Court, has argued that justices should not be bound by court precedent in deciding whether to overturn landmark decisions that they deem out of step with the Constitution.” 

NPR: “In her academic work, Barrett has written dismissively about the doctrine of respecting the Supreme Court’s precedents, known as stare decisis.  ‘I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,’ she wrote in a 2013 law review article.”
Barrett has said Supreme Court justices are free to revisit and overturn the court’s precedents.
BARRETT: “The Supreme Court has repeatedly held that a citation to a statutory provision suffices to show a legitimate and bonafide reason for denying a visa application. It is free to revisit that precedent, but we are not.”
Barrett pointed to Roe v. Wade as proof that a ruling does not settle public opinion and suggested SCOTUS should be unafraid of damaging its reputation by overruling precedent. 
BARRETT: “Stare decisis is not a hard-and-fast rule in the Court's constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent. Still, public confidence in the Court remains generally high. Moreover, members of the public (and particularly elites) regularly argue that the Court should overrule certain of its cases. If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging. Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.” 
Barrett specifically suggested that courts should not use reliance interests to justify relying on precedent – an apparent attack on Planned Parenthood v. Casey.
BARRETT: “This Article urges the federal courts to restore flexibility to stare decisis doctrine. Generally speaking, if a litigant demonstrates that a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent. Reliance interests count, but they count far less when precedent clearly exceeds a court's interpretive authority than they do when precedent, though perhaps not the ideal choice, was nonetheless within the court's discretion.” 

Washington Post: “In a 2003 article, Barrett called for a more ‘flexible’ understanding of stare decisis, arguing that courts should be less focused, in deciding whether to overrule a case, on so-called reliance interests -- the degree to which a decision has been woven into the settled expectations of those affected. When ‘a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent,’ she writes. ‘Reliance interests count, but they count far less when precedent clearly exceeds a court's interpretive authority.’ Reliance interests like, say, what the court plurality relied on in 1992, in deciding not to overrule Roe: ‘for two decades, ... people have organized intimate relationships ... in reliance on the availability of abortion in the event that contraception should fail.’” 
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