October 15, 2020

Takeaways from Day 3 of Barrett Hearings

screenshot from C-Span
Members of the Senate Judiciary Committee continued their questioning on day three of the hearings for Supreme Court nominee Judge Amy Coney Barrett on Wednesday. During the hearing, Barrett was asked whether she believed Roe v. Wade had "super precedent" and several Senators tried to convince the public that Barrett would strike down Griswold v. Connecticut.

When asked about "super-precedent," meaning that the decision made in a Supreme Court decision has been accepted to the point that it would be incredibly difficult to reverse, Judge Barrett said that Roe v. WadePlanned Parenthood v. Casey, and the gun rights case D.C. v. Heller do not fall under this category. She argued that "super-precedent" only applies to cases that are so well-established that nobody questions their reasoning. She cited Brown v. Board of Education and Marbury v. Madison as decisions with "super-precedent." Cases like Roe v. Wade and Planned Parenthood v. Casey cannot have "super-precedent" with this definition, because they are litigated constantly.

Some Senate Democrats have tried to push the narrative that Judge Barrett, if she is placed on the Supreme Court, would strike down Griswold v. Connecticut. This decision ruled that states cannot ban the use of contraception for married couples.

“I think that Griswold is very, very, very, very, very, very unlikely to go anywhere,” Barrett said, responding to a question from Sen. Chris Coons (D-Del.). She was straightforward in saying that she did not believe the ruling was in any danger of being overturned.

Barrett added that questions were being used by senators "to lay a predicate" for later questions about Roe v. Wade. When responding to questions from Sen. Josh Hawley (R-Mo.), she said, “Griswold does lie at the base of the doctrine that very much is challenged in federal court.”

Later court cases regarding contraception, abortion, and same-sex marriage relied on precedent from Griswold v. Connecticut.