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Jeffrey Rosen in the New York Times Magazine tries to resuscitate the much-chortled-at theory of "super" precedents that should be extra-hard for the Supreme Court to overturn (chortled at by us, among others). "Before the Roberts confirmation hearings," we learn, "Mr. Specter talked informally to several law professors, including [Prof. Rosen himself], who mentioned the theory of super-stare decisis. ...And Mr. Specter adopted this theory."

Rosen places a great deal of weight in his article on the fact that Fourth Circuit appeals judge J. Michael Luttig, a conservative favorite, wrote in a 2000 opinion that he understood the Supreme Court's decision in Planned Parenthood v. Casey to be "a decision of super-stare decisis". So is Luttig endorsing the novel concept, as Rosen seems to think? Ann Althouse (very persuasively in my view) argues not only that Luttig was doing no such thing, but "may have even been subtly mocking the Casey Court" by describing its intent in such a manner:

How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.