Don't be so sure a Justice Barrett would overturn Roe

Justice Scalia once characterized himself as a “fainthearted originalist” because there were some precedents he was not willing to overrule, even if they were clearly erroneous as a matter of constitutional interpretation. By contrast, Justice Clarence Thomas has won fans on the right by being less fainthearted when it comes to precedents he thinks were wrongly decided.

Justice Scalia was sometimes criticized as unprincipled in his approach to stare decisis, but Judge Barrett has argued that a principled defense can be built for Justice Scalia’s position, and in doing so she has argued that a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues.

Even an originalist judge, she believes, should frequently defer to what might be flawed precedents. That is true for what are sometimes called “superprecedents” like the unconstitutionality of racial segregation and the constitutionality of paper money, but it is also true for many more ordinary precedents that might have been badly reasoned but that are now broadly accepted.