Feinstein Presses Barrett on Roe v. Wade

Sen. Dianne Feinstein (D., Calif.) goes directly to the abortion-rights precedent Roe v. Wade, noting that Judge Barrett’s mentor, Justice Antonin Scalia, has said that the case was wrongly decided and should be overruled. She asks Judge Barrett if the case was wrongly decided.

This is the same territory that Mrs. Feinstein covered in the judge’s 2017 confirmation hearing. And Mrs. Feinstein gets a predictable answer: Judge Barrett says that she is going to follow the path taken by an earlier Supreme Court nominee, and decline to give the precedent “a thumbs up or thumbs down,” in order to avoid signaling that she “might tilt one way or another in a pending case.”

Mrs. Feinstein tries again, with a more direct answer from Judge Barrett: “I completely understand why you are asking the question, but again, I can’t pre-commit or say yes.”

Judge Barrett has written previously about what constitutes a superprecedent, or a precedent that, as she has said, “no serious person would propose to undo, even if they are wrong.” In the Journal of Constitutional Law, she wrote that superprecedents have five characteristics, including “widespread social acquiescence” and “support by political institutions” — two tests that conservatives might argue haven’t been met by the Roe case.