Rob brought you some first-rate Dianne Feinstein insanity yesterday, but you realize the week is young, right?
I sometimes get frustrated with conservatives who treat Supreme Court nominations as if they are nothing more than a means to stop abortions - not that this isn't important, but you'd think the federal courts do nothing that matters aside from deciding whether Roe v. Wade will stand or fall. But let's be fair here: Democrats are every bit as obsessed with this if not more so. Even if they're only doing it to check a box with their most ardent pro-abortion backers, they cannot in any way get through a nomination hearing without trying to find some way to trip up a Republican president's court nominee on the issue.
But how? Neil Gorsuch has already made it clear he's not going to pre-judge how he would vote on a hypothetical case, which is appropriate not only because he'd have to recuse himself if he did, but also because no one can say what the legal issues might be in a given case that would come before the Court. You'll almost never get a case where the question is, "Should Roe v. Wade be overturned?" The case will involve someone's rights as a question of law, if - and only if - Roe needs to be overturned to find for one party or the other, then the Court may or may not do so.
So instead of asking Gorsuch a question she knows he will not (and cannot) answer, Feinstein tries a novel approach. We already know that Roe represents a court precedent, which means the Court would overturn it only if it absolutely had to do so, but not that it would be unthinkable. But, Feinstein asks, could Roe be considered a "super-precedent"?
Watch:
Obviously you see where she wants to go with this. There's precedent, and then there's precedent! Because Roe has been affirmed so many times, shouldn't it basically be considered untouchable? I don't know why she thought Gorsuch might agree with such a proposition, but obviously he knows better than to do so. Sure, Roe has been affirmed many times, he acknowledges. Anyone who deals with facts would have to.
But when you look at the history of Roe as case law, I'm not sure you could really conclude that the many times it's been affirmed necessarily argues for it as super-settled law, the way Feinstein wants it to.
The simple reason for this is that the frequent cases challenging Roe speak to the lack of consensus in favor of it. If everyone agreed that this is a settled issue and that we should just stop debating it, you wouldn't see states passing laws in defiance of it, nor would you see presidential candidates vowing to appoint Justices who will overturn it, and then winning the presidency upon having done so. This only happens when there is a decided lack of consensus on the matter, not when everyone has agreed to respect the precedent, let alone any sort of so-called "super-precedent."
But regardless, there is no such thing as a "super-precedent" in law anyway. The notion that we respect precedent is known as stare decisis, and it means that a matter has essentially be decided as law. But that's not the same as saying it can never be reversed. The 1896 Plessy v. Ferguson ruling, which established that "separate but equal" school facilities justified educational segregation, was a matter of stare decisis until the 1954 Brown v. Board of Education decision that quite rightly overturned it. Plessy may have been settled law, but that doesn't mean it was settled correctly. Indeed, it was a historical injustice, and given a case in which the correct decision required its reversal, the Warren Court of the 1950s threw out the precedent and established a new one.
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She wouldn't have to keep scrambling to keep Roe in place - nor would she have to keep coming up with idiotic notions like the "super-precedent."
That was the right thing to do.
So a precedent is not necessarily set in stone for all time. There is certainly no such thing as a "super-precedent." Roe v. Wade wouldn't have needed to be affirmed so many times if it hadn't been challenged so many times by people who believe the original ruling was not only immoral but terrible constitutional law. The fact that we have never gotten a majority of Justices willing to overturn it doesn't mean everyone agrees the matter is settled. To be sure, it takes an extraordinary issue to justify a decision undoes stare decisis. Clearly Diane Feinstein and the rest of the Democrats don't think abortion is such an issue.
If there was a consensus about that, however, she wouldn't have to keep scrambling to keep Roe in place - nor would she have to keep coming up with idiotic notions like the "super-precedent."
