Precedent
David Cole's Qualified Defense of the Supreme Court
The prominent liberal legal scholar and former ACLU leader outlines how the Court has often checked Trump, but also critiques it for going against precedent.
Still the Stare Decisis Court (At Least For Now)
Even with a six-justice conservative majority, the Roberts Court has not (yet) increased the rate at which it overturns precedents.
2 Contradictory Decisions on AR-15 Bans Reflect Clashing Views of Supreme Court Precedents
Does the Second Amendment allow the government to ban guns in common use for lawful purposes?
Judge David Tatel on the Roberts Court, the Voting Rights Act, and the Notorious RBG
In a forthcoming book. retired Judge David Tatel offers candid thoughts and spills the tea.
The Traditionalist Supreme Court
Professor Marc De Girolami's assessment of the Roberts Court.
Notes on "The Restrained Roberts Court"
Contrary to popular perception, the current Supreme Court overturns precedent and declares laws to be unconstitutional less often than its predecessors did.
Supreme Court Reaffirms Strong Presumption of Statutory Stare Decisis
It did so in today's Voting Rights Act ruling in Allen v. Milligan. This holding has implications for other cases where litigants attempt to overturn statutory precedents, especially longstanding ones.
Does a Footnote in Sackett II Indicate How SCOTUS Will Resolve the Affirmative Action Cases?
Could the Court treat Justice Powell's Bakke opinion the way it treated Justice Kennedy's Rapanos opinion?
The Solicitor General Says It Is Not "Ever Too Late" to Get A Statute Right
Is the federal government giving up on statutory stare decisis?
Supreme Court Turns Down Opportunity to Reconsider Three More Precedents
Justices Thomas and Gorsuch have a much greater appetite for reconsidering prior precedent than the other justices do.
Why Won't the Biden Administration Join Gorsuch in Seeking To Overrule These Racist SCOTUS Precedents?
The Insular Cases “rest on a rotten foundation,” Gorsuch wrote.
Dobbs Won't End the Legal Battle Over Abortion
Liberals won't reconcile themselves to Dobbs, any more than conservatives accepted Roe v. Wade and Casey.
On Justice Thomas, Dobbs, Precedent, and Substantive Due Process
In his Dobbs concurrence, the senior associate justice reiterates his outlying views on precedent and his belief that all substantive due process decisions were "demonstrably erroneous."
Dobbs, Abortion, and Stare Decisis
Both majority and dissenting opinions include extensive discussions of stare decisis. But the truth is whether you think Roe v. Wade should have been preserved on that basis is heavily correlated with whether you think it was wrong in the first place.
Justice Kennedy: Draft Opinion Leak Was "Cowardly, Corrupt, Contemptuous Act."
The former Associate Justice joins those condemning the leak of a draft opinion.
Reversing Roe v. Wade Wouldn't be the First Time the Supreme Court Gutted Precedents that Protect Individual Rights - Far From it
That fact doesn't necessarily justify overruling Roe. Depending on how it's viewed, the history of such reversals may even counsel against further such moves.
John Hart Ely on Planned Parenthood v. Casey
Despite his criticisms of Roe, he also believed in stare decisis
My New Article on "The Normality of Knick"
It responds to a critique of the Supreme Court's major property rights ruling in Knick v. Township of Scott, by Profs. Stewart Sterk and Michael Pollack.
Why Didn't Justice Kagan Join Justice Sotomayor's Opinion Respecting Certiorari in National Coalition for Men v. Selective Service System?
Many were surprised that the K-named Justice joining Justice Sotomayor was Justice Kavanaugh instead of Kagan.
Detrimental Reliance and Stare Decisis
Insightful thoughts from Dean Vik Amar relevant to Ramos v. Louisiana
Changing Litigating Positions at the Solicitor General's Office
An interesting question of institutional norms
Forthcoming Article on "Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent"
The article explains why the Supreme Court was justified in overruling longstanding precedent in this important recent constitutional property rights case.
My New Article on the Supreme Court's Recent Decision in Knick v. Township of Scott - an Important Takings Case
The article is now available for free on SSRN.
The Rights and Wrongs of Overruling Precedent
Despite occasional rhetoric to the contrary, neither conservative nor liberal justices are shy about overruling constitutional precedent they believe to be badly misguided. And that's a good thing.
Why "Settled Law" Isn't Really Settled -- and Why That's Often a Good Thing
The Supreme Court needs to have the power to overturn "settled" constitutional decisions in order to prevent the permanent entrenchment of terrible precedents.
