Supreme Court

Is This Still the Stare Decisis Court?

The Roberts Court still overturns prior precedent at a lower rate than its post-War predecessors.

|The Volokh Conspiracy |

There has been quite a bit of talk about precedent and stare decisis of late, with legal commentators suggesting the Roberts Court has been particularly aggressive in its willingness to reconsider and overturn prior precedent. Justice Elena Kagan's sharp dissent in Knick v. Township of Scott raised the concern that the Court's conservative majority is showing insufficient concern for prior precedent, as did Justice Breyer's earlier dissent in Franchise Tax Board v. Hyatt. We may yet see another precedent overturned before the Court concludes its term this week.

It is certainly possible that the Roberts Court, with what appears to be a firm conservative majority, may be willing to overturn precedents at a rapid clip, but that has not been the Court's record thus far. Rather, as I've shown before, the Roberts Court overturns prior precedents at a significantly lower rate than its post-War predecessors. Others who have looked at the data, such as Adam Feldman of Empirical SCOTUS, reach the same results. Barring a rash of precedent-overturning decisions this week, this will remain the case when the term ends.

One response to this data is to claim that the Roberts Court has not had to overturn many precedents because prior courts already did so. The underlying premise of this claim is that the Rehnquist and Burger Courts overturned numerous Warren Court precedents. Yet this does not appear to be the case either. While there are certainly examples of those courts overturning precedents to move the law in a more "conservative" direction, there are plenty of examples of the reverse—of ostensibly conservative courts overturning prior precedent to move the law in a more "liberal" direction—as occurred in cases such as Garcia v. SAMTA and Lawrence v. Texas.

It should go without saying that these claims about the Court's approach to precedent and stare decisis is merely a descriptive claim. While many legal commentators and jurists suggest that upholding precedent is a good thing, most all could readily identify precedents that they believe should be overturned. Indeed, when asked whether the Court should be overturning precedents more or less often, the most honest answer is likely "it depends on which precedents we are talking about."

The claim that the Roberts Court has, thus far, overturned precedents at a significantly lower rate than its post-War predecessors is also just a description of the Court to date. It is not necessarily a prediction of the future. Although Justice Anthony Kennedy was not particularly shy about overturning precedents he did not like, it is quite possible that his replacement with Justice Brett Kavanaugh will either increase the frequency with which prior precedents are overturned or, more likely, increase the uniformity of the ideological valence of such decisions. Both are reasonable predictions, but they are just that: Predictions.

There's more to say about the Court's approach to precedent—and I plan to say more later this summer (after some additional research Adam Feldman and I are conducting). The point for now is just to note that whether the Roberts' Court's recent decisions overturning were wise or foolish, they are not (yet) indicative of a broader turn against precedent.

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  1. Do all cases create an opportunity to overturn a precedent?

    If not, then the percentage of cases that overturn precedent is not particularly meaningful.

    And then, we also know that some precedents are more significant than others.

    So maybe this is not such convincing data.

    1. “Do all cases create an opportunity to overturn a precedent?” No but irrelevant. What you should be asking is “Has the rate of cases presenting an opportunity to overturn a precedent changed (during the period of analysis)?”

      If the answer to that question is “no”, then the percentage of cases that actually overturn precedent is a highly convincing metric. I am aware of no evidence suggesting that the rate of cases presenting an opportunity to overturn a precedent has changed during the analytic period above.

  2. The current court with Kavanaugh and Gorsuch has not really had time to jell. Next term would be a better indication of how things will work going forward, assuming there are no further changes.

  3. Overturning precedent is a vector quantity: It has both magnitude AND direction. It’s at least possible that the Court went from overturning conservative precedents at one rate, to overturning ‘liberal’ precedents at a lesser rate. Which wouldn’t look very significant if all you looked at were how many precedents were overturned, but would actually be very significant.

    Mind, Obergefell, I don’t think that’s what has happened.

    1. If you are just looking at willingness to overturn precedent then it’s not clear why the direction matters.

      Unless, of course, you think liberal precedents deserve to be overturned, while conservative ones are obviously virtuous and correct and should be allowed to stand.

      1. The direction matters because if you’ve got a vector quantity, and you deliberately ignore direction, two diametrically opposed things can look like they’re identical.

        I think there are both conservative AND liberal precedents that richly deserve to be overturned. More of the latter than the former, only because the Constitution is, fundamentally, and by current standards, a conservative document, and so has to be abused terribly in order to enable many ‘liberal’ goals to pass constitutional scrutiny.

        The Court was right to declare that the Constitution does not enact Herbert Spencer’s “Social Statistics”. Neither does it enact Rawls’ “A Theory of Justice”. It’s best we keep both those things in mind.

        1. “Social Statics”

        2. I suggest that without any strain at all you can (and should) read the Constitution as agnostic with regard to modern ideas of “liberal” or “conservative” tendency. That is true not least because historical method demands rejection of the notion that it backs either.

          Before you can assert either notion, you have to show where the founders assert it. Given that none among the founders had any more notion of what those terms would mean today than we do of what they might mean 200 years hence, it is impossible that the founders could have left any such record.

          Brett, that is a roundabout, but I hope helpfully explanatory, way of saying your are committing the historical sin of present-minded analysis. It is always mistaken to do that.

          1. It is agnostic as to liberal or conservative goals. It is NOT agnostic as to the means that might be chosen to pursue them.

            Much that the left wants to do requires that the government exercise more power than it was delegated. This can be said of some of what the right wants, too, but less, because the right wants less.

            1. “Much that the left wants to do requires that the government exercise more power than it was delegated. This can be said of some of what the right wants, too, but less, because the right wants less.”

              This seems FAR less true when viewed from outside the partisan camps. They want different things, and different ways of getting those things. They may TALK about wanting less, but when they actually get the opportunity to run things… it keeps turning out that it was just talk.

              1. “They want different things, and different ways of getting those things.”

                And some ways of getting things are permitted by the Constitution, and some aren’t. Left-wing objectives frequently require means that are constitutionally precluded, much more often than conservative objectives.

                This is why, after all, the left adopted such a relentless devotion to living constitutionalism. Because a “dead” Constitution simply didn’t permit much of what they wanted to do.

                1. Left-wing objectives frequently require means that are constitutionally precluded, much more often than conservative objectives

                  This is begging the question like whoa.

                  I could as easily argue the right wants to ignore equal protection and due process in many of their policy proposals much more often than the left does.

                  1. Not to mention that the right has adopted “originalism” as a way to justify implementing their ideas.

                    1. The right COULD adopt originalism, because many of their ideas were already constitutional. The left had to adopt “pull it out of my ass”ism, because so much of what they wanted to do wasn’t.

                    2. Under Brett’s Constitution, his preferred policies are Constitutional.

                      This is somehow different than the same thing being true for liberals understanding of the Constitution.

                  2. “This is begging the question like whoa.”

                    Sadly, I think that’s what he actually sees through those partisan goggles he can’t seem to take off.

                    He’s got a bad case of “it’s OK when WE do it”-itis.

        3. I do understand about vectors, Brett, but you are begging the question by arguing that direction matters here, and what we want is a vector quantity.

          You may well be interested in that, and can do your own study if you are. OTOH, it may be that Adler and Feldman are only interested in propensity to overturn precedent, regardless of direction, in which case direction doesn’t matter and you have no vector to worry about.

  4. I think you meant “undue concern”

  5. “undo concern for prior precedent” – nice one (and, per Google, potentially original – at least there are no other exact hits)

  6. Two related questions:

    1. Has the Roberts court overturned political process cases—the ones that affect election results—at a higher rate than previously?

    2. Has the Roberts court heard more political process cases than did previous courts?

    1. That information is only useful in the context of the legislation and effects in place at the time.

      Hypothetical: the Martian Extremist Network (MEN) gain electoral power over a majority of electoral votes, and start passing laws that since the constitution explicitly says it applies to men, then only members of MEN get to vote.

      What does it mean when the courts then starts hearing lots of cases?

      Hypothetical: One World Network (OWN) starts passing laws to extend the vote to everyone in the world, to OWN those Americans.

      Does it mean the same thing if the Supreme Court then starts reviewing those cases? Both scenarios involve an increase in volume, but if you don’t know the relative background situation it’s not helpful.

  7. Should have been, “political process precedents—”

  8. From Thomas’ concurring opinion in Gamble

    “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution’s su-premacy over other sources of law—including our own precedents. That the Constitution outranks other sources of law is inherent in its nature.”

    I agree with gorsuch’s dissent in Gamble – 5A is a direct prohibition against the federal government, not withstanding “dual Soveriegn”. See Barron v Baltimore. two separate statutes do not create two events

    That being said, Thomas somewhat forceful statement on stare decisis seems unneeded in the Gamble case – unless he was foreshadowing a future case.

    1. When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.

      “Demonstrably” is doing a lot of work there. I don’t think “demonstrably erroneous” means “I think it’s wrong,” though I suspect Thomas does.

  9. “One response to this data is to claim that the Roberts Court has not had to overturn many precedents because prior courts already did so. The underlying premise of this claim is that the Rehnquist and Burger Courts overturned numerous Warren Court precedents”

    Another response is that it takes time to locate a suitable test case, and the decision to look for one and pursue it is unlikely unless and until it’s clear that the suggestion to overturn will be welcomed. I suggest that we’re right about the point where those test cases are being sought, and, in some cases, created.
    Plessy was law for a long time before Brown came along, and conservatives are hoping they are seeing the last few years of Roe v. Wade. Of course, they thought they had that one in the bag before.

  10. as I’ve shown before, the Roberts Court overturns prior precedents at a significantly lower rate than its post-War predecessors.

    What about other kinds of precedents?

  11. Which war?

  12. Kagan’s recent foot-stomping in Knick seems to have prompted the most recent surge in interest concerning stare decisis at the Supreme Court.

    Without reaching the merits of her opposition, I think the takings clause under the 5th Amendment is a poor hill to choose to fight on. The public seems to be significantly opposed to any sort of Fifth Amendment taking, even when it is done for a narrow public use (roads, parks, etc).

  13. When was the golden age of stare decisis?

  14. […] Two other tidbits: First, because the Chief Justice joined Justice Kagan’s Kisor opinion, the Court missed out on the opportunity to overturn a third precedent for the term, so the Roberts Court is not likely to surpass its post-War predecessors in the rate with which it overturns precedents any time soon. This is still the stare decisis Court. […]

  15. […] Two other tidbits: First, because the Chief Justice joined Justice Kagan’s Kisor opinion, the Court missed out on the opportunity to overturn a third precedent for the term, so the Roberts Court is not likely to surpass its post-War predecessors in the rate with which it overturns precedents any time soon. This is still the stare decisis Court. […]

  16. […] Two other tidbits: First, because the Chief Justice joined Justice Kagan’s Kisor opinion, the Court missed out on the opportunity to overturn a third precedent for the term, so the Roberts Court is not likely to surpass its post-War predecessors in the rate with which it overturns precedents any time soon. This is still the stare decisis Court. […]

  17. […] Western law professor Jonathan Adler has shown that the Roberts Court overturns precedents at a significantly lower rate than its […]

  18. […] Western law professor Jonathan Adler has shown that the Roberts Court overturns precedents at a significantly lower rate than its […]

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