Of Alito and superduperprecedents

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On Monday, Supreme Court nominee Samuel Alito was asked by Judiciary Committee Chairman Arlen Specter to comment on superprecedents and superduperprecedents. Evidently Specter was relieved by Alito's comments that there was something in the nature of a sliding scale in determining whether precedents must be followed. Specter doesn't want to seem responsible for overturning Roe v. Wade. Alito, whose opinions show him to be a judge who carefully follows governing precedents, doesn't want to say whether he would vote to overturn Roe v. Wade or not. My guess is that he's not sure how he would vote and wants to be able to approach any such decision with an open mind.

What is a superprecedent? Jeffrey Rosen of the New Republic had an interesting article on the subject in the New York Times. Obviously the case everyone is thinking about is Roe. But consider another case that for a long time could have been called a superprecedent, Plessey v. Ferguson: the 1896 decision that held that "separate but equal" racial segregation was legal. A third of the nation based its way of life on that decision. It was vigorously and almost unanimously supported by the voters in that region. (Of course, blacks were not allowed to vote in most of the South.) But Plessey was finally overturned by Brown v. Board of Education. No one today seriously argues that Brown was wrongly decided. Ergo, superprecedents, perhaps even superduperprecedents, can be overturned.

How was Brown overturned? Not by a frontal assault but by flank attacks launched by Thurgood Marshall. He argued that it was unfair to have segregation in law schools if the state had no law school for blacks. And so on. Precedents were set that suggested that there was something rotten in Plessey. Finally the Supreme Court was persuaded that Plessey was too rotten to stand. It was overturned after 58 years.

Roe has been the law now for 32 years. Yale Law Prof. Jack Balkin has a very smart discussion of superprecedents on his blog. I think what he's arguing is that cases upholding restrictions on abortion would tend to undermine Roe. Therefore Roe supporters have reason to oppose Judge Alito, who has written opinions upholding such restrictions. But does that mean Alito would vote to overturn Roe? As I said, I'm unclear on this. Overturning Roe would not have the practical consequences that overturning Plessey did. Very few states would vote to criminalize abortion generally. And legal scholars of all stripes agree that the Roe opinion is poor constitutional law; Justice Ruth Bader Ginsburg has written that the case was decided on the wrong grounds. The 1992 Casey decision reaffirming Roe did not so much defend the case's reasoning as it said that we said so, therefore it's so.