Barrett Says ‘Brown v. Board of Education’ Is ‘Superprecedent’ Beyond Overruling

By Mark Walsh — October 13, 2020 5 min read
  • Save to favorites
  • Print

U.S. Supreme Court nominee Amy Coney Barrett on Tuesday called the landmark Brown v. Board of Education of Topeka desegregation decision one of a handful of “superprecedents” that it would be “unthinkable” to be overruled.

The comments came during a marathon day of questioning before the Senate Judiciary Committee in which Barrett got a handful of education-related questions and also discussed how she, her husband, and their seven children have coped with remote learning during the coronavirus pandemic.

“It was a challenging time, as it was for every American,” Barrett said about remote learning in response to a question from Sen. Ted Cruz, R-Texas, on the second day of her confirmation hearing to replace the late Justice Ruth Bader Ginsburg.

Barrett said she and her husband, Jesse, welcomed their oldest daughter, Emma, back to their home in South Bend, Ind., from college at the University of Notre Dame last spring when COVID-19 forced many schools to close.

“Emma obviously could manage her own e-learning,” Barrett said. “Our high school-age children, Tess and Vivian, could too. Jesse and I just tried to take a divide and conquer approach for the younger four. It was quite challenging, I assure you.”

Barrett did not discuss what the learning arrangement has been this fall, but Notre Dame has been open for in-person instruction (in fits and starts), as have many Catholic K-12 schools across the nation.

Brown as ‘Superprecedent’

Questions about Brown and its place in history have come up at every recent Supreme Court confirmation hearing, going back at least to Chief Justice John G. Roberts’s hearing in 2005. Often, the motivation is not about the role of race in education today but as a way for senators to draw out nominees on their views on when precedents in other areas might be overturned, particularly on abortion rights.

Some high court nominees, such as Neil M. Gorsuch in 2017, have had to be pushed and prodded to acknowledge that Brown was correctly decided, not because he necessarily harbored any doubts but was wary of getting drawn deeper into a debate about precedents. (At least one lower court nominee of President Donald Trump refused to answer a question about Brown at her hearing.)

By contrast, Brett M. Kavanaugh, in his 2018 confirmation hearing to join the high court, enthusiastically went on for several minutes about his views as Brown as the greatest decision in the Supreme Court’s history.

Barrett was asked several times about the Brown decision on Tuesday.

“In my writing I was using a framework that’s been articulated by other scholars, and in that context, ‘superprecedent’ means precedent that is so well established that it would be unthinkable that it would ever be overruled,” Barrett said.

Barrett agreed with Sen. Lindsey Graham, R-S.C., the committee chairman, that it would quite unlikely a genuine case would arise that would give the Supreme Court an opportunity to reconsider Brown.

“For Brown to be overruled, you would have to have Congress or some state or local government impose segregation again,” Barrett said. " I do not see that happening anytime soon.”

Later on Tuesday, Sen. Amy Klobuchar, D-Minn., asked Barrett about her views on Brown as a superprecedent, and why the court’s 1973 decision in Roe v. Wade, which upheld abortion rights, was not in the same category.

Klobuchar asked Barrett about one of the nominee’s academic writings, which discussed Brown as one of seven Supreme Court decisions that, as Barrett described it, “are on most hit lists of superprecedent.”

The others that Barrett has cited—as appearing on scholars’ lists of superprecedents and not necessarily reflecting her own view—are Marbury v. Madison, the 1803 decision that established judicial review; Martin v. Hunter’s Lessee, an 1816 decision upholding Supreme Court review of state court judgments; the so-called Legal Tender Cases, an 1870 decision which upheld the issuance of paper money; the Civil Rights Cases, an 1883 ruling that the 14th Amendment applied only to state action; Helvering v. Davis, an 1937 ruling that upheld the Social Security Act; and Mapp v. Ohio, a 1961 decision that incorporated the Fourth Amendment against the states.

“These opinions are invoked as evidence that there are at least some occasions on which stare decisis undeniably and absolutely constrains the court,” Barrett wrote in an article in the Texas Law Review.

Barrett told Klobuchar that Brown qualifies as a superprecedent because “calls for its overruling simply don’t exist.”

By contrast, Roe‘s legitimacy has been under constant attack, which “suggests it doesn’t fall into that category,” Barrett said.

The NAACP Legal Defense and Educational Fund issued a report Monday that criticizes Barrett’s views on Brown.

“Judge Barrett has explicitly stated that "[a]dherence to originalism arguably requires ... the reversal of Brown v. Board of Education,” the group wrote, quoting a phrase from another article co-written by Barrett.

The discussion of Brown “raises serious questions about her commitment to enforcing core civil rights protections,” the LDF report says. “Treating Brown as potentially mistaken, even if untouchable, is far different from recognizing that it was correctly decided.”

Reaction to George Floyd Video

In a powerful moment early in the day, Barrett was asked by Sen. Richard Durbin, D-Ill., about her reaction to the video of George Floyd, the Black man who died in May after a Minneapolis police officer had kept his knee on Floyd’s neck during an arrest, which prompted protests and a national dialogue about race and police tactics.

“As you might imagine, given that I have two Black children, that was very, very personal for my family,” Barrett said. “Jesse was with the boys on a camping trip in South Dakota. So I was there, and my 17-year-old daughter Vivian, who’s adopted from Haiti, all of this was erupting. It was very difficult for her. We wept together in my room.”

Barrett said that her 10-year-old daughter, Juliet, also had difficulty understanding the episode and she tried to explain it to her children.

“I mean, my children to this point in their lives had the benefit of growing up in a cocoon where they have not yet experienced hatred or violence,” she said. “And for Vivian, you know, to understand that there would be a risk to her brother or the son she might have one day of that kind of brutality has been an ongoing conversation. It’s a difficult one for us like it is for all Americans all over the country.”

Related Tags:

A version of this news article first appeared in The School Law Blog.