What the hell's a "superprecedent"? -- or, why Luttig is looking better and better

Generally, they're good for liberals and bad for conservatives -- at least for conservatives who claim to be originalists (as if it's possible to know the "original intent" of the Framers, as if what applied back in 1789 can possibly apply in full in 2005). Jeffrey Rosen explains in the Times:

Many conservatives say they hope that the new nominee will follow the lead of Justice Antonin Scalia and, even more, Justice Clarence Thomas, who has become a conservative hero because of his willingness to overturn many liberal precedents of the last 70 years, from Roe v. Wade to cases upholding the New Deal.

But social conservatives face a problem: a new theory of "superprecedents" that is gaining currency on the right as well as the left.

The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or "super-duper" precedents -- that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.

And so:

In response, Judge Roberts embraced the traditional doctrine of "stare decisis" -- or, "let the decision stand" -- and seemed to agree that judges should be reluctant to overturn cases that had been repeatedly reaffirmed.

If that is the case, Chief Justice Roberts would be at odds with the influential part of the conservative movement that argues that the Constitution should be strictly construed in accordance with the intention of the framers, regardless of the consequences.

It would seem that Luttig is with Roberts on this -- that is, for superprecedent and against pure originalism:

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."

Before the Roberts confirmation hearings, Mr. Specter talked informally to several law professors, including this writer, who mentioned the theory of super-stare decisis, noting that Judge Luttig thought it was important that Roe had been repeatedly reaffirmed by different Supreme Courts, composed of justices appointed by presidents from different parties and confirmed by Senates controlled at times by Democrats and Republicans.

Yes, Luttig is looking better and better. (Maybe...)

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Around the blogosphere:

Ann Althouse responds: "Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended [Planned Parenthood v. Casey] to serve as an especially strong precedent."

Confirm Them posts on Luttig on superprecedents and Alito on spousal notification.

Daily Kos has an open thread.

Kevin Drum at Political Animal makes an excellent point: "It seems to me though, that the focus on Roe is misguided in any case. If my understanding of Roe is correct, it's based on a generalized right of privacy as decided in Griswold v. Connecticut, which in turn was based on our current understanding of the doctrine of substantive due process. I suspect you can't overturn Roe without also substantially overturning Griswold and significantly weakening the modern application of substantive due process at the same time. Rosen mentions this, and it seems like it's really the key issue: not whether Roe is a superprecedent, but whether Griswold's interpretation of substantive due process is a superprecedent."

More to come -- obviously.