President Trump’s Supreme Court nominee, Judge Amy Coney Barrett, said Tuesday that Roe v. Wade, the case that legalized abortion nationwide in 1973, did not belong to the category of judicial rulings known as “super-precedents” — decisions considered so fundamental that they cannot be overturned.
“Roe is not a super-precedent,” Barrett said, adding: “But that does not mean it should be overruled.”
Barrett would not say how she would rule on Roe v. Wade if she were presented with a challenge to it.
Few judicial decisions are universally regarded as super-precedent. On Tuesday, Barrett cited only two: Marbury v. Madison, which established the Supreme Court’s ability to strike down unconstitutional laws, and Brown v. Board of Education, which abolished segregation and the practice of “separate but equal,” as decisions “that no one questions anymore.”
The question about Roe came from Sen. Amy Klobuchar (D-Minn.), who tried to press Barrett on where she stood on a number of principles that lie at the heart of several recent decisions and current high-stakes political disputes regarding the right to vote and ballot access. Barrett declined to answer all of them — even a question about whether voter intimidation is illegal.
Although Klobuchar pointed out that there have been laws against voter intimidation “on the books for decades,” Barrett called it a “hypothetical” question.
“It is not something that is appropriate for me to comment on,” she said, adding that she would limit her specific statements to cases upon which she had either ruled or previously publicly opined.