# What Are the Other 'Superprecedents'? **URL:** \ **Category:** Politics & Elections\ **Created:** [October 14, 2020, 6:57pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957 "2020-10-14T18:57:32Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\ **Post date:** [October 14, 2020, 6:57pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/1 "2020-10-14T18:57:32Z")
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? 🙂 ---
**Author:** ![TheCuse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thecuse/32/2854_2.png) [@TheCuse](https://boards.straightdope.com/u/TheCuse)\ **Post date:** [October 14, 2020, 7:01pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/2 "2020-10-14T19:01:22Z")
I never heard of it before, either. First time was when Senator Kamala Harris mentioned it in the hearings. I’ll be following this discussion to learn more. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 14, 2020, 7:01pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/3 "2020-10-14T19:01:36Z")
I would certainly hope that Marbury v. Madison would be one of them. ---
**Author:** ![Dewey\_Finn](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dewey_finn/32/4222_2.png) [@Dewey\_Finn](https://boards.straightdope.com/u/Dewey_Finn)\ **Post date:** [October 14, 2020, 7:10pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/4 "2020-10-14T19:10:02Z")
Griswold vs Connecticut and Lawrence vs Texas, perhaps. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [October 14, 2020, 7:16pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/5 "2020-10-14T19:16:45Z")
Maybe the Miranda thing? ---
**Author:** ![Elmer\_J.Fudd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/elmer_j.fudd/32/1211_2.png) [@Elmer\_J.Fudd](https://boards.straightdope.com/u/Elmer_J.Fudd)\ **Post date:** [October 14, 2020, 7:30pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/6 "2020-10-14T19:30:00Z")
A superprecedent is a superprecedent until it isn’t. It’s a meaningless term. There is nothing stopping SCOTUS from ignoring any precedent. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 14, 2020, 8:12pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/7 "2020-10-14T20:12:58Z")
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. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 14, 2020, 8:50pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/8 "2020-10-14T20:50:26Z")
> [@Dewey\_Finn](#): > > Griswold vs Connecticut I don’t know about that. Sounds like ACB would like to overturn that one. > [@Elmer\_J.Fudd](#): > > A superprecedent is a superprecedent until it isn’t. It’s a meaningless term. There is nothing stopping SCOTUS from ignoring any precedent. I doubt that SCOTUS would be overturning Maybury vs Maddison. I mean, they could, but then they just destroyed themselves. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [October 14, 2020, 9:15pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/9 "2020-10-14T21:15:27Z")
> [@k9bfriender](#): > > I doubt that SCOTUS would be overturning Maybury vs Maddison. Is that the one about citizen’s arrest? Oh, no, sorry, that was Maybury vs. Pyle. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [October 14, 2020, 9:33pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/10 "2020-10-14T21:33:04Z")
Sorry, Marbury. And Madison. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [October 14, 2020, 11:56pm UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/11 "2020-10-14T23:56:38Z")
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. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [October 15, 2020, 12:33am UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/12 "2020-10-15T00:33:52Z")
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. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [October 15, 2020, 2:06am UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/13 "2020-10-15T02:06:58Z")
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. ---
**Author:** ![Marion\_Wormer](https://avatars.discourse-cdn.com/v4/letter/m/d07c76/32.png) [@Marion\_Wormer](https://boards.straightdope.com/u/Marion_Wormer)\ **Post date:** [October 16, 2020, 12:41am UTC](https://boards.straightdope.com/t/what-are-the-other-superprecedents/922957/14 "2020-10-16T00:41:27Z")
Read Korematsu vs United States in wikipedia. " Chief Justice [John Roberts](https://en.wikipedia.org/wiki/John_Roberts) wrote in his majority opinion in the 2018 case of _[Trump v. Hawaii](https://en.wikipedia.org/wiki/Trump_v._Hawaii)_ [[4]](https://en.wikipedia.org/wiki/Korematsu_v._United_States#cite_note-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.