Amy Coney Barrett claims landmark abortion case is not a 'super-precedent' and not settled law

‘Roe is not a super precedent because calls for its over-ruling have never ceased,’ conservative nominee tells committee

Roe v. Wade, the landmark case making abortion legal across the country, does not meet the criteria of a “super precedent” and therefore is not settled law, Supreme Court nominee Amy Coney Barrett said, signalling she believes it could be overturned.

The conservative federal judge made the comment under questioning by Minnesota Senator Amy Klobuchar, a former candidate for president, who pressed the nominee in an attempt to get her to signal or outright say she favours overturning Roe.

“Roe is not a super precedent because calls for its over-ruling have never ceased,” Ms Barrett told the senator during a debate chock full of legal jargon and focused on several hot-button election-year issues.

But the next words she spoke were a reminder of how few, if any, legal positions during a high court confirmation hearing.

“But that does not mean that Roe should be overturned,” Ms Barrett told Ms Klobuchar as the Senate Judiciary Committee spent its first full day questioning Donald Trump’s third conservative Supreme Court nominee. “It just means that it doesn’t fall on the small handful of cases like Marbury v. Madison and Brown v. [The Board of Education] that no one questions anymore.”

The former case established the power of courts to rule on and overturn laws and statues set by the government. The latter Supreme Court decision made racial serration in American public schools illegal.  

When Ms Klobuchar asked about another case and whether it was on that handful list, the nominee advised her to ask no further questions about cases Ms Barrett herself did not put on that list in a law journal article. She told the senator if she kept it up, “every time that you ask the question, I’ll have to say that I can’t grade it.”

It was a rare moment of near-tension during the confirmation hearing’s second full day.