What does a TRUMP presidency look like?

[crazy canuck]

Isn't that exactly WHY you should not have any such thing as  "superprecedent"? It could be easily used as a way to weaken anything NOT a superprecedent.

IE, just theoretically, you could have someone make their way through academia and the judiciary talking about how Roe v Wade, when asked, is established precedent. What a good answer!

Then when they get to the SC, they could overturn RvW, and say "Well sure, it was precedent, but it wasn't SUPER Precedent!"

That's precisely the point.  The doctrine of stare decisis depends on precedent being precedent, only to be overturned if there is an absolutely compelling reason to do so.  By restricting stare decisis to "superprecedents" one can overturn RvW with no compelling reason to do so other than that the Pope and republican voters would like it.

Never in my life heard of a "superprecedent" in my life until today.

It's fairly rare for a prior binding precedent to be explicitly overruled, but it does happen.  It's fairly straight-forward - you'll get a lot of obiter dictum in other cases which says "maybe this isn't a very good precedent, but that's not for us to decide today".  Until eventually some judge writes a decision which cites all of this criticism and who says "well yes this past case is clearly no good, it's time to overturn it".

British Justice Lord Denning was famous (infamous) for this - he'd be the one writing all that criticism, and then he'd cite his own words when it came time to overturn the precedent!

It is not a term of art and she did not try to suggest it was.  She wrote an article that tried to identify why some precedents are stronger than others.  As I pointed out earlier, it would be intellectually dishonest to suggest that was not so.  In my area of practice the SCC has overturn its own unanimous decisions twice during my career.  Once when I was in the middle of a two day Court of Appeal case on the very issue the SCC changed - That was the day Dunsmuir came down.  Then Dunsmuir was just recently overturned by Vavilov.

[Malthus]

Isn't that exactly WHY you should not have any such thing as  "superprecedent"? It could be easily used as a way to weaken anything NOT a superprecedent.

IE, just theoretically, you could have someone make their way through academia and the judiciary talking about how Roe v Wade, when asked, is established precedent. What a good answer!

Then when they get to the SC, they could overturn RvW, and say "Well sure, it was precedent, but it wasn't SUPER Precedent!"

That's precisely the point.  The doctrine of stare decisis depends on precedent being precedent, only to be overturned if there is an absolutely compelling reason to do so.  By restricting stare decisis to "superprecedents" one can overturn RvW with no compelling reason to do so other than that the Pope and republican voters would like it.

Never in my life heard of a "superprecedent" in my life until today.

It's fairly rare for a prior binding precedent to be explicitly overruled, but it does happen.  It's fairly straight-forward - you'll get a lot of obiter dictum in other cases which says "maybe this isn't a very good precedent, but that's not for us to decide today".  Until eventually some judge writes a decision which cites all of this criticism and who says "well yes this past case is clearly no good, it's time to overturn it".

British Justice Lord Denning was famous (infamous) for this - he'd be the one writing all that criticism, and then he'd cite his own words when it came time to overturn the precedent!

It is not a term of art and she did not try to suggest it was.  She wrote an article that tried to identify why some precedents are stronger than others.  As I pointed out earlier, it would be intellectually dishonest to suggest that was not so.  In my area of practice the SCC has overturn its own unanimous decisions twice during my career.  Once when I was in the middle of a two day Court of Appeal case on the very issue the SCC changed - That was the day Dunsmuir came down.  Then Dunsmuir was just recently overturned by Vavilov.

... and still no-one understands judicial review. 😄

[crazy canuck]

keeps me in business 

[Malthus]

keeps me in business 

There is always a bright side. 

[The Minsky Moment]

Isn't that exactly WHY you should not have any such thing as  "superprecedent"? It could be easily used as a way to weaken anything NOT a superprecedent.

IE, just theoretically, you could have someone make their way through academia and the judiciary talking about how Roe v Wade, when asked, is established precedent. What a good answer!

Then when they get to the SC, they could overturn RvW, and say "Well sure, it was precedent, but it wasn't SUPER Precedent!"

I don't quite follow how something that would be unthinkable to reconsider can be used to weaken other jurisprudence that has nothing to do with that case. 

I don't either which is why I don't understand Barrett's use of the concept.

In the Gerhardt article "superprecedent" was used descriptively - not normatively - to describe the concept of a decision that had detractors but that as a practical matter it would be impossible to conceive that it world be reversed.  An example he have was Mapp v Ohio which established the exclusionary rule for 4th amendment violations - i.e. things seized without a proper warranted search are excluded from evidence in a criminal proceeding.  Mapp was bitterly attacked at the time and still criticized by many but Gerhardt's point is that it has become so embedded in the US criminal justice system it would be inconceivable to dispose of it

(one could say the same thing about Miranda - decades of cop dramas have made "the right to remain silent" so talismanic it would be hard to imagine reversing it).

Barrett however seems to turn that descriptive concept into a normative one that ranks precedents in super and non-super categories with the implication a different standard of review might apply.

[grumbler]

I don't either which is why I don't understand Barrett's use of the concept.

In the Gerhardt article "superprecedent" was used descriptively - not normatively - to describe the concept of a decision that had detractors but that as a practical matter it would be impossible to conceive that it world be reversed.  An example he have was Mapp v Ohio which established the exclusionary rule for 4th amendment violations - i.e. things seized without a proper warranted search are excluded from evidence in a criminal proceeding.  Mapp was bitterly attacked at the time and still criticized by many but Gerhardt's point is that it has become so embedded in the US criminal justice system it would be inconceivable to dispose of it

(one could say the same thing about Miranda - decades of cop dramas have made "the right to remain silent" so talismanic it would be hard to imagine reversing it).

Barrett however seems to turn that descriptive concept into a normative one that ranks precedents in super and non-super categories with the implication a different standard of review might apply.

It is very typical of the hyperpartisan to turn intellectual arguments into moralistic arguments, and then recast the moral arguments based on the conclusion one wishes to draw.    Conservatives abhor the overthrow of precedent (legal or otherwise) for the "modern" as an existential threat to conservative principles.  Barrett and the Republican senators seem to be creating a category of precedent that is "un-Republican, and therefor not a super-precedent, and so can be overturned even in the absence of a compelling legal argument."

There's really no such thing as a precedent whose overturn is "unthinkable."  There are just precedents for which, as you say, the circumstances for their overturn are very hard to imagine.

[Sheilbh]

British Justice Lord Denning was famous (infamous) for this - he'd be the one writing all that criticism, and then he'd cite his own words when it came time to overturn the precedent!

Infamous indeed. He writes very well. And is an unusual judge for becoming a Law Lord and then stepping down to become Master of the Rolls (head of the civil branch of the Court of Appeal). I think he far preferred being Master of the Rolls and also just sitting on the Court of Appeal. Not least, I suspect, because he only had to convince one colleague to agree with him which if you are a fairly activist/populist judge like him is quite helpful. 

As an aside my image of an activist judge is Lord Denning - not the American version. As you say leaving a trail of breadcrumbs for himself to overturn relatively long-standing precedent because of his sense of justice/what is right

But chances are now if you have a choice between referring to a Lord Denning judgment or one by another of his more orthodox contemporaries like, say, Lord Wilberforce (who I always liked as a law student), then you'd probably cite the latter

And yeah superprecedent sounds funny. I suppose I can see a use if you're an originalist in explaining why the concept of "man" has expanded since the founding fathers to fully include women and black people because you can kind of say well this is a superprecedent that updates the original text in some way. But I can't think of a principled, non-political way of working out what is and isn't a superprecedent

[Admiral Yi]

I don't either which is why I don't understand Barrett's use of the concept.

In the Gerhardt article "superprecedent" was used descriptively - not normatively - to describe the concept of a decision that had detractors but that as a practical matter it would be impossible to conceive that it world be reversed.  An example he have was Mapp v Ohio which established the exclusionary rule for 4th amendment violations - i.e. things seized without a proper warranted search are excluded from evidence in a criminal proceeding.  Mapp was bitterly attacked at the time and still criticized by many but Gerhardt's point is that it has become so embedded in the US criminal justice system it would be inconceivable to dispose of it

(one could say the same thing about Miranda - decades of cop dramas have made "the right to remain silent" so talismanic it would be hard to imagine reversing it).

Barrett however seems to turn that descriptive concept into a normative one that ranks precedents in super and non-super categories with the implication a different standard of review might apply.

[Devil's advocate/honest question]

What's the difference between you saying reversing certain precedents would be inconcievable and Supreme Court nominee saying reversing certain precedents would be inconceivable?

[crazy canuck]

Isn't that exactly WHY you should not have any such thing as  "superprecedent"? It could be easily used as a way to weaken anything NOT a superprecedent.

IE, just theoretically, you could have someone make their way through academia and the judiciary talking about how Roe v Wade, when asked, is established precedent. What a good answer!

Then when they get to the SC, they could overturn RvW, and say "Well sure, it was precedent, but it wasn't SUPER Precedent!"

I don't quite follow how something that would be unthinkable to reconsider can be used to weaken other jurisprudence that has nothing to do with that case. 

I don't either which is why I don't understand Barrett's use of the concept.

In the Gerhardt article "superprecedent" was used descriptively - not normatively - to describe the concept of a decision that had detractors but that as a practical matter it would be impossible to conceive that it world be reversed.  An example he have was Mapp v Ohio which established the exclusionary rule for 4th amendment violations - i.e. things seized without a proper warranted search are excluded from evidence in a criminal proceeding.  Mapp was bitterly attacked at the time and still criticized by many but Gerhardt's point is that it has become so embedded in the US criminal justice system it would be inconceivable to dispose of it

(one could say the same thing about Miranda - decades of cop dramas have made "the right to remain silent" so talismanic it would be hard to imagine reversing it).

Barrett however seems to turn that descriptive concept into a normative one that ranks precedents in super and non-super categories with the implication a different standard of review might apply.

I listened to the whole of the hearing and I did not hear her suggest that there were different standards of review.  I heard her say the same thing has Gherhardt, that for a range of reasons there are a few precedents that will likely never be challenged or overturned.  I certainly did not hear her say that precedents that fell outside that description had a lower standard for being overturned then the established jurisprudence of how a justice would reason their way through that issue.  Quite the opposite.

I realize this nomination of hyperpolitical for other reasons.  But it sure looked to me like the Dems were picking the wrong fight with this judge.

In the Canadian context there are very few SCC cases that I would be comfortable saying are beyond challenge or will never be overturned.

[alfred russel]

I suppose I can see a use if you're an originalist in explaining why the concept of "man" has expanded since the founding fathers to fully include women and black people because you can kind of say well this is a superprecedent that updates the original text in some way.

Do you need that workaround?

We have an amendment that gives all citizens equal protection, and even without that "man" has a definition that extends to all humans regardless of gender.

[Sheilbh]

Do you need that workaround?

We have an amendment that gives all citizens equal protection, and even without that "man" has a definition that extends to all humans regardless of gender.

But isn't that definition of "man" a modern definition rather than something that would be understood at the point of the constitution? Which is my very limited understanding of originalism - so this could just be a nonsense thought I've had.

But Olympe de Gouge wrote Declaration of the Rights of Woman and the Female Citizen in response to the Declaration of the Rights of Man and the Citizen because, my understanding, is those words didn't have those both gendered meanings. For example the citizen implies active citizenship and rights and participation within society, which was not perceived to be a female role in the 18th century. It was a speech in the French legislature about education for women only needing to cover domestic not civic matters that prompted Mary Wollstonecraft to right Vindication of the Rights of Woman to explicitly counter that argument and say that women were as capable of education for rational, civil life as men.

I think we basically later ret-conned Western thought by saying "man" includes "woman". Which is fine if you just read a text and look at its meaning, but if you think the meaning at the time it was written mattered that presents a challenge.

[DGuller]

Using "man" for "human" strikes me as old-fashioned rather than new-fashioned.  In modern times it could strike me as problematic to use male term as the default when gender is unknown.

[Eddie Teach]

Something can be old-fashioned now but unheard of in the 18th century.

[Sheilbh]

Using "man" for "human" strikes me as old-fashioned rather than new-fashioned.  In modern times it could strike me as problematic to use male term as the default when gender is unknown.

Agreed but I think that meaning is located somewhere between 18th century and contemporary. But, and I could be wrong, in the context of a political document in the late 18th century (before Wollstonecraft and de Gouge) you would probably mean men when referring to "man" or "person" or "citizens". Especially because a lot of earlier writing that I know of often used gendered language around rulership and governance - so the rights of kings is similar to the rights of a husband or father (Wollstonecraft turns this on the head by noting that in this the soldiers - preening in their uniforms and doing what they're told by their governors - are a particularly effeminate social group).

Plus from what I understand there was a distinction at that point between a sort of passive (or feminine citizenship) and active (or masculine) citizenship - which is what de Gouge and Wollstonecraft are getting at with their emphasis on citizenship and active participation. So from my understanding women definitely had rights (subject to their role in the family) - freedom of conscience, or to be secure in their homes. But they didn't get the sort of participatory duty bits of citizenship - serving in public life etc. As I say this could all be nonsense and as AR says originalists don't need this.

[alfred russel]

Sheilbh, I'm not even really sure where such a distinction would be relevant, considering the 14th amendment clearly establishes citizenship and equal rights without regard to gender.

I also did a text search on the word "man" in the constitution and didn't come back with a result.