Past Writings Indicate Amy Coney Barrett May Reverse Roe v. Wade

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Controversy around cases like Roe pointed to the public’s rejection of the idea of “a permanent victor in a divisive constitutional struggle”, she wrote in the Texas Law Review article.

“Court watchers,” she added, “embrace the possibility of overruling, even if they may want it to be the exception rather than the rule.”

The staying power of precedents, Amy Coney Barrett went on, is not necessarily in their support by courts but in the broad, popular acceptance of them.

Among several cases she described in the 2013 article as clearly immune from bids to overturn them was Brown vs. Board of Education, which found racial segregation in schools was unconstitutional.

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“Scholars,” she said, “do not put Roe on the superprecedent list (the list of untouchable precedents) because the public controversy about Roe has never abated.”

Her critics say such arguments put Trump's Supreme Court nominee outside the mainstream of legal scholarship.

“Barrett takes the extreme view, unsupported by virtually anyone in the legal community, that a judge does not have to adhere to precedent if she believes a case was wrongly decided,” the Alliance for Justice has said, saying it shows she is open to the possibility of reversing Roe v. Wade.

Jamal Greene, a Professor at New York’s Columbia Law School, said Trump's Supreme Court nominee could stop short of shooting down Roe v. Wade and other abortion-rights precedents — and still end up gutting them.

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“There is room for someone like her who takes Scalia’s position to not vote to overturn precedent — but to never see any abortion restriction that she sees as unconstitutional,” he said.

While Amy Coney Barret has suggested she is nearly perfectly aligned with Scalia, Greene said she may be farther to Scalia’s right and nearer to current conservative Clarence Thomas.

“Thomas’ position is that if a precedent was wrongly decided, then you vote to overturn it,” Greene said.

“Justice Scalia distanced himself from that. … It sounds like Barrett is trying to associate herself with a position just short of Thomas’ position.” 

(Writer: Michael Tarm)

Source: https://apnews.com/article/donald-trump-amy-coney-barrett-us-supreme-court-courts-antonin-scalia-0f1f64e9da312cb60312b6795b196de8