DANIEL VAUGHAN: Super-precedents destroy the Supreme Court’s legitimacy

April 1, 2019

The best examples of judicial activism gone wrong come when the Supreme Court invents new laws whole cloth, rendering any state or federal-level intervention impossible. The most dangerous of these judicial fiats are termed super-precedents.

In these cases, using the tradition of stare decisis, courts typically build off of past precedent in order to keep law in-line with both the Constitution and prior legislation. That isn’t a problem, per se, but judicial opinions that go beyond that get more discretion than they deserve.

The term super-precedent was first coined by then-Sen. Arlen Specter, a Pennsylvania Democrat-turned-Republican-turned-Democrat, during the 2005 confirmation hearings for now-Chief Justice John Roberts.

Specter questioned Roberts hard on this new term, asking, according to the New York Times, “whether [Roberts] agreed that certain cases like Roe had become super-precedents or ‘super-duper’ precedents — that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.”

In those hearings, Specter focused on the abortion precedents of Roe v. Wade and Planned Parenthood v. Casey, starting a trend in Democrats’ questioning that followed Samuel Alito, Neil Gorsuch, and, most recently, Brett Kavanaugh to their confirmation hearings. Indeed, since Specter, the Dems have been hyper-focused on ensuring that judicial fiat decisions are never even questioned.

But the concept of “super-precedent” is antithetical to everything in law. The only true “super-precedent” we have in the United States is the U.S. Constitution, which is more of a supreme statute over the entire government. And even with that document hanging over each branch of government, we know that no right is absolute.

Super-precedents set by Roe and Casey are becoming above reproach by anyone — all without a constitutional amendment, and without the broad-based support that is typically required in America. As Circuit Judge Daniel Anthony Manion on the 7th Circuit observed in a case trying to curtail the abortion precedent:

…[W]hile Roe isn’t super-precedent, it did spawn a body of jurisprudence that has made abortion the only true “super-right” protected by the federal courts today. The purported right to an abortion before viability is the only one that may not be infringed even for the very best reason. For an unenumerated right judicially created just 45 years ago, that is astounding.

No other right — even those listed in the Constitution — has the level of protection afforded to the abortion right under the Casey doctrine.

When the Supreme Court stepped in during the to rid the legal system of segregation and “separate but equal,” they had originalist grounding that was based in the text of the Constitution. Those decisions, while immediately controversial, faded as overt racism was pushed out of mainstream culture.

Abortion has never held that same place in our history, traditions, or public consciousness. In fact, the most recent polling of the abortion question shows Americans are more pro-life than ever.

Moreover, the ability of the court system to create “super-precedents,” or “super-rights” is far beyond the ideas of the Founders. Alexander Hamilton, writing in Federalist 78, said “[i]t proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”

Hamilton made that argument on the basis that the Supreme Court was lower than the legislative branch in the hierarchy and wouldn’t engage in actual legislation. And while it’s certainly possible for a court to expand established rights, it’s a harder to make a case that the Supreme Court can grant new rights freely.

As it is now, citizens in the United States are stuck with the prospect of having to amend the U.S. Constitution to overrule a disastrous precedent. A pro-life amendment is the only sure-fire way to overrule Supreme Court precedent on a right that the people never voted on, never established, and never debated.

The last major situation wherein the Constitution had to be amended to fix a debacle created by the Supreme Court was in the aftermath of the Civil War. The 13th, 14th, and 15th amendments were explicitly aimed at overruling the horrific Dred Scott decision that upheld slavery as constitutional.

And even with those amendments, the courts continually upheld Jim Crow laws and other segregationist policies well into the 20th Century.

As Peter Lawler said, “the doctrine of the super-precedent is entirely a judicial invention with no constitutional warrant. The Court now is in no way obliged to honor it.”

When you combine the liberal obsession with super-precedent and their newfound appreciation for “institutionalism,” all you get is a deranged judicial philosophy that says that anything conservative is bad but liberals on the high court should be able to legislate freely.

It’s entirely destructive to the Supreme Court as an institution to have it creating super-precedents and preventing anyone from checking them. Overruling these super-precedents is one of the major tasks in front of the Roberts court.

Reining in the high court will return it to its proper roots.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.