About that "superprecedent" thing

March 23, 2017 | By TONY FRANCOIS

During this week’s Senate Judiciary Committee hearing on Judge Gorsuch’s nomination to the Supreme Court, Ranking Member Diane Feinstein repeatedly used the term “superprecedent” to describe the Supreme Court’s 1973 decision in Roe v. Wade. Her line of questioning was aimed at badgering the judge into agreeing with her that Roe enjoys a higher degree of precedential value than plain-old precedents do.

As you can intuit from the video, Judge Gorsuch did not seem comfortable using the term “superprecedent” although this does not appear to have anything to do with Roe. He does agree that the decision has been relied upon repeatedly by the Supreme Court and the lower federal courts. It is the word “superprecedent” at which he appears to balk.

As good judges do, we start with the text. When it doubt, look it up. A search of all available federal court decisions (trial, appellate, Supreme Court) on Westlaw for opinions in which the term “superprecedent” appears yields: one case. In which the word is not even written by the judge, but rather appears in the title of a law review article cited by the court.

Do variations on the term yield more results? Well, sort of. One unpublished federal trial court decision uses the term “super precedent,” and a Seventh Circuit decision by Judge Posner uses the term “super-precedent.” Derisively, in both cases.

Perhaps we have found the reason for Judge Gorsuch’s reticence. He appears to be too kind to tell the good Senator that what she is talking about does not exist in federal law.