Jack Balkin (law, Yale) has an excellent post over at Balkinization about my colleague Jeffrey Rosen’s New York Times essay about superprecedents. The notion of superprecedent is that there are cases that are so firmly entrenched that they ought not to be overturned despite being in error. Roe v. Wade is the superprecedent that most have in mind.
In his post, Jack Balkin explains that a strategy of many conservatives is to “accept Roe as settled (as modified by Casey) but begin to chip away at it over the long haul.”
He explores three justifications for superprecedents. The first justification is that a precedent has held on for a long time and weathered some attacks. But this justification does little to justify why the precedent deserves to stand.
A second justification is that a lot of law has built up upon a precedent. The precedent serves as “a support beam in a house that, even if not installed correctly or in the right place, cannot now be removed without seriously endangering the safety of the occupants.”