I have to tell you that I was surprised when I heard this. Especially recently and when I thought I already knew a lot about Constitutional law.
Apparently even to original intent judges, there’s a set of ‘superprecedents’ that they will never touch. (Of course Roe v. Wade isn’t consider one of them, naturally.)
What are the rest of them? I know that there is allegedly only a handful. So you could probably list them all here. On TV, they mentioned Brown v. the Board of Education. That’s comforting. (I always wondered how Justice Thomas would rule on that anyways. Conservatives have been smarting about that for years.)
So what are they? And are there any gay ones? And what about women, as long as I’m asking?
There was definition used yesterday that if I heard it right says a super precedent is a long established decisions for which there is no actual disagreement in the courts. I took it to mean there were no cases heard in court challenging the decision.
I agree that it is a meaningless term though as far as defining an enduring property of a court decision. They’ll overturn any decision if they want to, and nothing would stop a flood of challenges to any precedent if there’s enough political will to do so. Even if all such challenges are unsuccessful being heard at all destroys the super-precedent status.
There are no superprecedents. It is all made up. Despite the fact that this sounds like an extremely naive and nihilistic way to look at the matter, it’s actually my informed read on the situation.
You don’t gain any predictive information about what a judge will do in the future from the way they describe their “philosophy.” You just gain information about what they’re pretending is true.
Judges make decisions based on their political values, and the outcome they want to achieve. It’s only de rigueur to call Brown a superprecedent in conservative circles, for example, because the current conservative read on Brown is that it can be used to ban affirmative action. It’s not like conservative or originalist justices are using these precedents to expand the actual administration of the equal protection of the law beyond what the Warren court envisioned. You won’t see Amy Coney Barrett writing an opinion where she says “goddammit, I would really like to restrict access to abortion, but this novel legal argument based on precedent I’ve previously endorsed is just too compelling!” It’s just the particular game they’re playing in order to convince people that they’re not playing a game.
None of it means anything. They rule based on the consequences they wish to see occur. The way to understand how a justice will rule is to to understand what consequences align with their values.
I think it depends on what you mean by overturning, and by precedent. Mapp v. Ohio, e.g., is the case that incorporated the exclusionary rule of the 4th Amendment guarantee against unreasonable search and seizure as applying against the states. It does so in the same way other parts of the Bill of Rights have been incorporated, via the 14th Amendment’s due process clause. That is how the Bill of Rights has come to (partially) apply against the states, rather than only against the federal government.
I would not expect the concept of incorporation itself to be overturned, because the way states and the people operate now is based on this legal construction. But, could a future Supreme Court overturn the exclusionary rule for evidence collected in violation of the 4th Amendment? I think that is possible. It’s also remotely possible that a whole bunch of incorporation and other substantive due process cases get partially overturned in order to straighten out some convoluted reasoning.* But the incorporation of the rights is unlikely to be overturned in my view.
So, in my view, certain foundational doctrines are unlikely to be overturned, but the cases that established those doctrines, maybe could be, depending on specifics.
*I think most lawyers would agree that incorporation fits better into the wording of the “privileges or immunities” clause, but that was ruled out in the Slaughterhouse cases. So, a novel theory of substantive due process became the underpinnings of incorporation. I would not be totally shocked if some future court decided to make it all hang together better, but I’m also not holding my breath.
I’ll add Gideon v Wainwright which ruled that criminal defendant have the right to counsel in state criminal court proceedings and that counsel must be provided at state expense if the defendant cannot afford a lawyer.
And Loving v Virginia which ruled that laws banning inter-racial marriage were unconstitutional.
Read Korematsu vs United States in wikipedia. " Chief Justice John Roberts wrote in his majority opinion in the 2018 case of Trump v. Hawaii[4] that the Korematsu decision was explicitly repudiated."
It’a a ripper of a story and includes fraud (suppression of evidence) on the part of DOJ.
