This hasn’t been a very good week for Senate Democrats looking for ways to undermine Amy Coney Barrett’s Supreme Court confirmation process. Few of them have come off looking worse than Senator Feinstein of California. Her repeated efforts to get Barrett to predict how she would vote on a hypothetical case challenging Roe v Wade were met with cool responses about lacking any set agenda for any particular policy. But that doesn’t mean that their allies in the liberal media have given up on the effort. At NBC News, Jonathan Allen has published his own analysis, claiming to have discovered the “road map” that Barrett is plotting to use to make abortions illegal, reinstitute segregation and God only knows what else.
You really need to screw on your thinking cap to keep up with Allen’s verbal gymnastics here, but it all seems to come down to a disregard for precedent and the need for someone to have standing to challenge existing laws.
With the help of senators of both parties, Supreme Court nominee Amy Coney Barrett laid out a road map for overturning the Roe v. Wade ruling protecting abortion rights and the Brown v. Board of Education decision outlawing school segregation.
Barrett declined to say Tuesday how she would rule on any future cases, including those involving abortion, racial discrimination, voting rights and the Affordable Care Act.
But she did articulate clear views about the relative susceptibility of Roe and Brown to being reversed. She said Brown is settled only so long as no one sues the government — federal, state or local — for segregating schools. And she said Roe, because it is the subject of more controversy, is more open to being thrown out.
Despite the fact that none of this was actually said by Barrett, Allen manages to dig out some quotes that he feels “suggest” that she’s leaving the door open to these sorts of plans. Regarding Roe the author excitedly points to the fact that Barrett noted the ruling was not a “super-precedent.” While that may be true, Barrett also pointed out that “super-precedent” is a term of “art, rather than doctrine.” The reality is that stare decisis is not any sort of law or constitutional mandate. The court has reversed itself many times over the course of its history.
Barrett was simply noting that there are a number of challenges to Roe in the lower courts, demonstrating that disputes exist and the matter isn’t settled. But she also went on to point out that simply because challenges exist, that doesn’t automatically mean that a decision should be reversed, only that it’s more likely to receive a hearing.
In the case of Brown v Board of Education, outlawing segregation along racial lines, Allen’s interpretation truly falls down the rabbit hole of conspiracy theories. When asked about Brown, Barrett conceded that it would qualify under the generally accepted definition of a super-precedent. Her reasoning for this is that the decision is so widely agreed upon, nobody in their right mind would attempt to pass a law reinstituting segregation so there would be no challenge for the court to consider.
Allen counters by saying that there still could be lawsuits against policies that create the appearance of segregation. But now that Barrett has sent out a signal that any such lawsuit could open the door to reconsidering the decision, it will have a “chilling effect” on plaintiffs wishing to bring such a suit. They will fear, in Allen’s view, that attempting to sue could result in the Supreme Court overturning Brown entirely and ushering back in an era of segregation. And that fear will cause them to not fight for their rights in court.
Were you able to follow that? No? Me neither. But the media obviously needs to keep up the anti-Barrett buzz throughout the confirmation process and scaring people into believing that Barret plans to outlaw abortions and endorse segregation is apparently one of the few cards they have left to play.