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The term “super precedents,” which are, in short, Supreme Court precedents that some judges would desire to make “extraordinarily difficult to overturn,” as phrased by The Washington Post, has come up in nearly every Supreme Court confirmation in the last twenty years. Since the term “super precedent” is mainly used in discussing defending landmark abortion rights cases (i.e., Roe v. Wade and Planned Parenthood v. Casey), it is presumed to be a partisan issue with support mainly coming from the left. However, some conservative judges such as Justice Brett Kavanaugh and Justice Amy Coney Barrett have seemed to endorse the idea of super precedents in the past, meaning it is not as black, white, and partisan as it seems. Moreover, it may seem arbitrary to regard some precedents as more binding than others, so why is this such an important debate when it comes to Supreme Court decisions? Through an exploration of super precedents, their relevance in the 21st century (with regards to abortion rights), and the lack of partisan consensus on the issue, it may become clear why this issue fosters so much disagreement among judges and legal scholars. Moreover, Roe v. Wade, with its highly debated status today, serves as a useful lens through which the pertinence of the term super precedent becomes clear. 

It would be insufficient to talk of super precedents in their modern relevance without discussing abortion rights cases. The most recent instance of controversy on the topic came about during Justice Ketnaji Brown Jackson’s confirmation hearing. As the first Black woman to serve on the court, Jackson’s confirmation on April 7th was a historic moment in U.S. history, as was reflected by the amount of attention that followed her hearing. While Jackson’s hearing was often clouded by fruitless debates over her past experiences and decisions, her two cents on super precedents seemed to fly under the radar. What is remarkable about Jackson’s testimony is that she fell short of endorsing super precedents. In fact, Jackson seemed to argue against super precedents and instead contended that all SCOTUS precedents should be regarded equally, much to the dismay of a lot of the left.

Furthermore, the reason that many Democratic politicians expected Jackson to endorse the idea is because many of the officials that support a women’s right to choose seek the Court to regard landmark abortion cases like Roe v. Wade and Planned Parenthood v. Casey as super precedents. If this were to occur, the right to choose would become a kind of super decision that future SCOTUS judges would not be able to overturn easily. In the least, they would be at a major impasse when considering to overturn a decision like Roe like they seemed to be today in Dobbs v. Jackson Women’s Health Organization. In fact, in Kavanugh’s 2018 confirmation hearing, he stated multiple times that he considered Roe as “precedent on precedent,” signaling he was open to regarding that case as a super precedent. But since joining the Court, Kavanaugh has implied that he is open to overturning Roe regardless and due to the recently released draft opinion on Dobbs, the public knows that Justice Kavanaugh is not the only individual open to overturning Roe. For conservative judges and citizens alike, Roe is not a “no brainer” precedent the way the left seeks to regard it. However, the term super precedents was floated even before Roe was as under the spotlight as it is today, and not only by left leaning legal scholars. Thus, the discussion of super precedents has implications that encompass more than solely abortion rights cases. 

One definition given to the term super precedents is Supreme Court opinions that may be currently identified as most persuasive to the Court, government officials, and the public. This, in fact, is the definition that Justice Barrett seemed to endorse in a past law review article, and it would not necessarily apply to Roe because that decision is still questioned in America. Another important term used by Barrett in that article is “stare decisis,” the Latin phrase for “to stand by decided cases; to uphold precedents; to maintain form adjudications,” according to Black’s Law Dictionary. Essentially, stare decisis holds that cases are decided according to past precedent.  

Stare decisis is an important fixture of the judicial branch as an impartial body. In that law review article, which is from 2013, Barrett, a generally right leaning judge, seems to acknowledge this point and argues that past precedent should make justices hesitate to overrule prior SCOTUS decisions. This is all to say that the debate around super precedents has roots in the question of whether future Supreme Court decisions should be able to undermine the authority of past precedents without restraint, which has potential to make the court seem to be overly political.

That is not to say that super precedents, were they to actualize, could never be overturned. Rather, these precedents would be remarkably difficult to overturn. Proponents believe that this hurdle is necessary in order to protect certain human rights not explicitly stated in the Constitution. As PACE Law Review explains in an August 2021 edition, “an additional requirement is needed to avoid important human rights precedents from being too easily overruled or distinguished.” Hence, abortion rights activists’ pursuit of Roe’s recognition as super precedent—the belief that the right to abortion is a human right is one that the Court should not be able to easily overturn. 

The question of accepting super precedents as a means of maintaining human rights seems to be central to those who advocate for the idea. Moreover, the job of the Supreme Court is to deliver opinions based on what is enumerated by the Constitution. Thus, an answer to the question of whether or not judges should defend super precedents must also answer the question of whether or not there are certain human rights that the Constitution could be interpreted to defend must be regarded as more extraordinary precedent. Take, for example, the right to privacy. In Griswold v. Connecticut, the Supreme Court interpreted the Constitution to afford the right to privacy, though the right is not specifically stated. Should this be considered a super precedent and thus be more vehemently defended? 

This question is difficult to answer, mainly due to the potential ramifications of how to determine super precedent status. It is indeed important to be cognizant of the fact that the Supreme Court often seeks to overturn past precedent for the sake of ensuring that precedents were determined correctly. PACE Law Review quotes Justice Louis Brandeis to say that a justice must decide “whether it is better for the law to be settled or settled right.” Naturally, this is not very precise and, therefore, leaves room for the Court to act as a political body that overturns precedents as they see fit. However, it is a worthy concern when taking into account the principle that laws should change as the face of America does. 

Moreover, this concern is representative of the reason Roe has become inextricably linked to the debate over super precedents. In Dobbs, heard by the Supreme Court in December 2021, the Court will answer the question of whether Mississippi’s law that bans almost all abortions after 15 weeks is unconstitutional (which would effectively overturn Roe). Though the case reduces to a states’ rights issue, those arguing in favor of Mississippi’s law believe that the Court should overturn Roe because its determination of when a fetus is viable (and thus, can no longer be aborted) is arbitrary and unsupported by science. In other words echoing Brandeis’ concern over super precedents; those in support of Mississippi’s law believe that Roe was not “settled right.” 

This debate over Roe is, mainly, the reason that super precedents have become, more or less, a partisan issue. Though super precedents have been in discussion for a while, today, they are mainly used in discussions over whether Roe should be a super precedent. These factors underscore the earlier discussion from PACE Law Review. Supporters of abortion rights believe that the right to abortion is a human rights issue that merits extra protection because the right to choose is so likely to come under scrutiny by both the public and SCOTUS. This belief caused notable disappointment from Democrats and reproductive activists over Jackson’s non-endorsement of super precedents. In sum, the idea of super precedents has as many advantages as it does pitfalls. The notion that certain rights, determined by Supreme Court precedent, should be difficult to overturn is easy to accept, on its face. However, concerns over how to determine which precedents should earn the title of “super precedent” present worthwhile concerns with regards to the Court’s ability to adjust archaic or unsuitable laws. The Court’s most important consideration is to stay unbiased in their interpretation of the Constitution and remain an apolitical body (meaning their decisions are based only in the Constitution and not on any political goings on). Thus, debates over super precedents will, hopefully, keep this fact in mind regardless of what decisions are made in the future.