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The Stare Decisis Court?

The Roberts Court has overturned precedents at a lower rate than its predecessors. Will this soon change?

The Supreme Court's October 2017 term was not a modest one. In three of the Court's final decisions of the term, the Court overturned longstanding precedents in three significant areas. In Janus v. AFSCME, the Court overturned Abood v. Detroit Board of Education to hold unconstitutional mandatory agency fees for public sector workers. In South Dakota v. Wayfair, the Court overturned Quill Corp. v. North Dakota and National Bellas Hess Inc. v. Department of Revenue of Illinois to allow states to tax out-of-state internet retailers. And in Trump v. Hawaii, the Court announced that the infamous Korematsu decision was a dead letter. To some, this is all further evidence that the Roberts Court is an "activist" court, all-too-willing to depart from prior precedent to advance a conservative agenda.

The actual data tell a different story. The stark departure from stare decisis seen this past June was something of a departure for the Roberts Court -- at least as we have come to know it thus far. Under Chief Justice Roberts, the Court has largely maintained the status quo, and has generally avoided overturning prior court precedents. As I noted several years ago (drawing on a New York Times report), the early Roberts Court has overturned prior court precedents at a lower rate than its predecessors. From my 2010 post:

the Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term. The record on striking down laws shows a similar pattern. The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term.

Since that post, the Roberts Court has largely stayed the course. If anything, the rate has slowed a little bit.

There are various ways to measure the frequency with which the Supreme Court overturns prior precedents. The NYT report relied upon one methodology. Here is another.

The Government Printing Office keeps a record of when the Supreme Court overturns precedents. The latest compilation of overturned precedents is here. From this source, I looked at the rate at which the post-war Court has overturned precedents in two ways: 1) identifying the number of precedents overturned, and 2) the number of cases in which one or more prior cases were overturned. I made one correction for one error in which term a case was decided (Alleyne v. U.S., a Roberts Court decision listed earlier for some reason). I then added data for the October 2017 term. Counting Trump as overruling Korematsu, I included three overruling cases and four overruled cases for this term. By either measure, the findings reported by the NYT in 2010 remain true. If anything, the Roberts Court is more of an outlier.

Here is the data:

Terms Case
Overruled

Overruled
Rate/Term

Overruling
Cases
Overruling
Rate/Term
2010 NYT
Warren Court 15 64 4.27 45 3 2.7
Burger Court 17 70 4.12 52 3.06 2.8
Rehnquist Court 19 50 2.63 41 2.16 2.4
Roberts Court 13 18 1.38 13 1 1.6

By all three measures, the rate at which the Roberts Court overturns precedent is significantly below that of all three post-war predecessor courts.

Some caveats are in order. First, and most importantly, while this data tells us something about the general rate at which the Roberts court reconsiders and overturns prior cases, it tells us nothing about the relevant significance or importance of individual cases, i.e. whether overturning Quill in Wayfair is more or less significant than overruling Baker v. Nelson in Obergefell. Second, this data does not address the extent the Court may be departing from prior or widely held understandings of prior law. So, for instance, one can argue that the Roberts Court's decision in Shelby County v. Holder departed from prior precedent on the scope of federal power under the Reconstruction Amendments without overruling any prior precedents. This may be true, but this sort of change in the law would not show up in this analysis. Third, given the relative short time period, it's possible the Roberts Court data is artificially lowered by the brief period during which the Court only had eight justices. The Roberts Court may also be overturning fewer cases because it hears fewer cases, but it's not entirely clear which way this observation cuts.

One response to this data is to suggest that the reason the Roberts Court overturns so few precedents is because it followed the Burger and Rehnquist Courts. By this account, decades of Supreme Court dominance by Republican nominees left little work for the Roberts Court to do. This is a plausible hypothesis, but it does not appear to explain the data.

The Burger Court had a majority of Republican nominees, but it was not a particularly conservative court on most issues (it decided Roe v. Wade 7-2) and in many areas it did more to preserve or extend the jurisprudence of the Warren Court than to overturn it. The Rehnquist Court was more conservative in some areas, but remained liberal on others. Moreover, anyone who claims there aren't plenty of significant precedents that some conservatives would like to overturn has not been paying attention.

In both courts one finds that that cases overturning precedents moved in both liberal and conservative directions. For instance, the Burger Court overturned the "conservative" National League of Cities v. Usery decision with Garcia v. SAMTA. According to the NYT report above, only 60 percent of the Rehnquist Court decisions overturning prior precedents moved the law in a "conservative" direction. In other cases, it moved the law in a more "liberal" direction, sometimes by overturning the Rehnquist Court's own prior decisions, as in Roper v. Simmons (overturning Standford v. Kentucky) and Lawrence v. Texas (overturning Bowers v. Hardwick).

The big question is whether the Roberts Court's pattern of restraint will continue into the future. Changing the composition of the Court changes the Court's internal dynamics, including (potentially) the sorts of cases of the Court hears and its willingness to reconsider precedent. So it is entirely possible that a more conservative court will be more willing to overturn precedent. Is this likely? I am not so sure.

As I noted in a prior post, the early Roberts Court has been the Kennedy Court. When the Roberts Court overturned prior precedent, it was almost always because Justice Kennedy believed the prior case should be overruled. Justice Kennedy wrote the Wayfair decision and joined both Janus and Hawaii v. Trump. While there is reason to believe Chief Justice Roberts is reluctant to overturn prior precedent (given his general orientation toward preserving the status quo and avoiding disruption), this was not the case with Justice Kennedy. Where Justice Kennedy believed a prior case was wrong, he was rarely reluctant to support a reversal (Roe v. Wade being a possible, notable exception).

For the above reasons, I think it's unlikely that Justice Kennedy's replacement is more willing to overturn precedent than Justice Kennedy was. It is certainly possible, however, that Justice Kennedy's replacement is more willing to shift the law in a conservative direction. The key distinction here is that while Justice Kennedy was generally conservative and did not care too much about precedent, he sometimes wanted to push the law in a more liberal direction (as in Lawrence and Obergefell).

So, were I too make a prediction (not knowing who Justice Kennedy's replacement will be), I would predict that the Roberts Court is not likely to overturn precedents at a more rapid clip going forward, but where it overturns prior precedent, it may tend to do so in a more conservative direction. Of course, only time will tell.

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  • Michael Cook||

    Heterosexual marriage being an archaic human institution of a mere few millennia's duration, it of course should be held to be highly inferior to such as today's Supreme Court doctrines of maybe a few decades existence, created and published by political appointees in robes.

  • James Pollock||

    ... and THAT'S why heterosexuals can't get married any more. Because judges. Pffah!

  • Sarcastr0||

    Your Constitutionally mandated gay lover will be assigned to you each in turn.

  • nonzenze||

    Oooh, can I have Ewan McGregor?

  • Michael Cook||

    The reference was to the exclusivity of the socio/religious tradition of marriage to heterosexuals, until judges decided to change it. The idea of gay marriage exploded on the marriage in kind of a funny way in the early 21st century when the LGBTQ crowd organized and realized how really, really rich they were economically, not to mention how powerful and influential in the entertainment and the media industry.

    This translated not only to instant political power, but TV series and movies that became flooded with likable homosexual characters in domestic situations. Soon EVERY sit-com or drama on every network had to feature such programming.

    Not that I really object to gay marriage per se anyhow if people feel it doesn't really harm civilization in the long run to do so. It is just that I am always more tolerant of individuals who have a grievance than groups who have nursed a common grievance and suddenly become extremely powerful.

  • Michael Cook||

    exploded on the WORLD, DAMN DAMN DAMN LACK OF EDIT

  • Michael Cook||

    Apologies for caps and repetitions. It is troubling the sheer power of $$$$$$ to create sympathetic characters in the public mind or to amplify selected demonizations of opponents as the political narrative demands. This is the gold age of slick propaganda. Whence democracy now?

  • Krayt||

    As oppsed to millenia of propaganda and dictatorship?

    Perhaps judicial rulings that find a change in what most Americans feel are real freedoms are short-circuiting the last few years of free speech debate change, which would lead to vote changes and then changes in the law.

    But I am fine with increased personal freedoms due to judicial activism. I am not fine with judicial activism that grants government more power.

    That most definitely should be in the realm of making an amendment.

  • Dilan Esper||

    I see this argument a lot. It's a form of concern trolling of course ("mind you, I have no problem with gay marriage"), but more importantly, how do you think heterosexual marriage was imposed? It seems to me that it was produced by some religious authorities who set all sorts of rules as to who could and couldn't marry, which they will of course argue came from God but which more likely came from the patriarchal gender roles of an agrarian society, and the whims of the religious authorities who held power.

    So another bunch of authorities, who unlike the religious authorities at least had some real secular legitimacy (appointed by Presidents with Senate confirmation), came forward to broaden the definition of marriage, and THAT'S the thing we are supposed to get so outraged about?

    Gay marriage didn't injure ANYONE. Literally. The worst thing that's gonna happen is a few flower shops may or may not be forced to cater to gay couples. That's a tiny injury in the broader scope of things.

    So what if it was imposed by judges?

  • Lee Moore||

    but which more likely came from the patriarchal gender roles of an agrarian society

    Why attribute to the patriarchy that which is entailed simply by reality ?

    In 2018, women can avoid pregnancy, and there are lots of jobs they can do if motherhood does not appeal, or that they can combine with motherhood if they wish.

    But at any time, and in any place up until about a hundred years ago (thanks capitalism) - gender roles were ruthlessly imposed by reality. Most work was relentlessly physical. Your great grandma may have been a tough old bird (if she hadn't been she wouldn't have survived) but she couldnt have done your great grandpa's work. Nor would she or her children have survived without her husband, and the division of labor between them. She would have been pregnant or looking after small children for the great part of her adult life (part of her bit of the division of labor.)

    And track back a couple of hundred years more and she couldn't have wielded a sword or an axe or drawn a bow so she'd be no use fighting. Which would mean she had no experience at fighting so she could never rise to be a commander. And since political power derived from the ability to .....actually wield power, she'd have had none.

    The patriarchy is a silly myth. Men did not exercise power over women. A small group of men exercised power over everybody. And those men held power because they were competent to use it. If they weren't, they would be replaced by those who were.

  • Rev. Arthur L. Kirkland||

    Heterosexual marriage being an archaic human institution of a mere few millennia's duration, it of course should be held to be highly inferior to such as today's Supreme Court doctrines of maybe a few decades existence, created and published by political appointees in robes.

    This argument would fit just about any racist cause (including slavery) equally well, but bigots probably don't notice this.

  • David Nieporent||

    Kirkland isn't smart enough to realize that slavery was not ended by the Supreme Court.

  • Lee Moore||

    That seems a reasonable prediction. On politically contentious left-right issues, it seems more likely than not that Roberts will himself be the swing Justice, so if he is personally quite wedded to stare decisis, then it's quite possible that the overturning rate will actually fall. A 5-4 Conservative court isn't likely to be trying to overturn too many Conservative precedents, and Roberts may be running blocking patterns on liberal precedents, because stare d.

    One question, which I'm not sure that Roberts' history reveals, is whether he feels that stare decisis hardens immediately like superglue, or whether it sets more slowly like jello. So Roberts himself wrote a scathing dissent on the Arizona redistricting case - if something similar turned up at SCOTUS in the next few years, would he consider Arizona fully set, or still a bit mushy ?

  • Bob from Ohio||

    Roberts may be running blocking patterns on liberal precedents, because he shares the liberal social views of his class.

  • TGGP||

    "So, were I too make a prediction (not knowing who Justice Kennedy's replacement will be), I would predict that the Roberts Court is not likely to overturn precedents at a more rapid clip going forward"
    I would think that based simply on regression-to-the-mean that an unusually low rate of overturning precedent will be followed by a somewhat higher rate.

  • Joe_JP||

    I open to nuanced analysis but those are significant caveats.

  • brec||

    the Court announced that the infamous Korematsu decision was a dead letter.

    Would the fact that this announcement was a dictum rather than a holding have any practical future effect?

  • Flight-ER-Doc||

    Funny, I thought the job of the USSC was to interpret cases based on the Constitution - not on the mistakes made in the past.....

    After all, earlier courts have made such GREAT decisions - Dred Scott, Marbury v. Madison, Plessey v. Ferguson, Korematsu.

    Yeah, all great examples of stare decisis.

  • nonzenze||

    Indeed. As an institution.

  • JoeGoins||

    Anyone have thoughts on this monstrosity?

  • TwelveInchPianist||

    It's an analysis that raises serious questions.

    That is, serious questions about who we allow to teach in our publicly funded law schools.

  • FlameCCT||

    Ouch. I can't even imagine a student writing that article and expecting to get a passing grade.

  • MonitorsMost||

    Jesus,
    That was awful.

  • ReaderY||

    Not all precedents are equal.

    The Supreme Court probably has to decide only a couple of cases and overturn only a couple of precedents for the socially conservative wing of the Republican Party to think it was worth the effort. It's all a question of which ones.

  • James Pollock||

    Not even close. Since the modern conservative can only be happy when making liberals UNhappy, a constant stream of reversals of things liberals care about will be expected and demanded.
    If it gets the liberals all riled up, the conservatives are all for it.
    (Yes, there's a certain amount of that flowing back the other way, too. But back when I was about 10 or 12 years old, my mom taught me that just because someone else is doing something, that doesn't make it OK for me to do it, too. Apparently, a lot of moms were sleeping on that one, and a lot of people never got that lesson.)

  • Lee Moore||

    1. I expect roughly 90% of conservatives would be content with a deal along the following lines "you leave us alone, and we'll leave you alone." But the libs couldn't make the deal, or if they made it they'd break it. Cos the essence of modern liberalism is not leaving other people alone.

    2. Schadenfreude is a rich and pleasurable emotion, if hardly edifying, and is well known to adults as well as children. But in the great scheme of things, how happy liberals are is not important to conservatives. What matters is whether liberals are making themselves happy by interfering with people going about their lawful occasions. Or whether the cause of liberal unhappiness, if unhappiness there be, is simply that they have been temporarily baulked from interfering with people going about their lawful occasions. If liberals can only make themselves happy by ordering other people about, then liberal unhappiness is something that conservatives are willing to bear.

    3. There's not copying Johnny's bad behavior by doing the same to Pam, on which Mom's admonitions are sensisible and educational. And there's refraining from smacking Johnny about the head, when he's trying to smack you about the head. Sometimes Moms get this wrong. Sometimes, if you don't smack back, Johnny will turn into an obnoxious brat, then juvenile deliquent, mugger and eventually murderer. Sometimes Johnny just needs to learn that he's not the only one who can smack people.

  • James Pollock||

    " I expect roughly 90% of conservatives would be content with a deal along the following lines "you leave us alone, and we'll leave you alone.""

    I think you're off by AT LEAST one order of magnitude.

    " the libs couldn't make the deal, or if they made it they'd break it."
    That may be true. But it's also true the other way. If you believe otherwise, it's probably because you're self-delusional.

    "the essence of modern liberalism is not leaving other people alone"
    The guys on one side want their business affairs left untouched by the government, but want to regulate the hell out of people's sex lives. The guys on the other side want to regulate the hell out of business affairs, and keep government out of people's sex lives. People on both sides tend to minimize transgressions of people on "our" side, and fixate on transgressions of people on "their" side.
    Ain't nobody but a few crackpots who truly, consistently advocate for leaving other people alone.

    "how happy liberals are is not important to conservatives"
    No. But how UNhappy they are certainly is.
    The other great driver of the movement is outrage over whatever the contrived outrage of the day happens to be. Every once in a while, there's actually something worth being outraged about. Mostly, there really isn't.

    " And there's refraining from smacking Johnny about the head, when he's trying to smack you about the head"
    If the conservatives weren't also claiming to be Christians...

  • Lee Moore||

    The guys on one side want their business affairs left untouched by the government, but want to regulate the hell out of people's sex lives.

    Just out of interest, what part of other people's sex lives do you think the aforesaid people want to regulate ?

    I imagine there are plenty of conservatives who disapprove, on moral grounds, of adultery, fornication, homosexual sexual activity, contraception - but I can't imagine you'd get even 10% of voters to vote for the criminalisation of any of these things. (In 2018 I mean, we're not talking about 1788.)

    There's rape and sex with children, I suppose, but I don't think regulating those is a particularly conservative obsession. Sex with dogs and sheep ? Ditto. Doing it in the street ? Ditto.

    Which pretty much leaves abortion as the only aspect of (or at least tangentially relating to) people's sex lives that a substantial number of people wish to regulate. But that's the exception that proves the rule. The rule being - voluntary sexual behavior between consenting adults should be a private thing in which nobody else should interfere. But abortion is not voluntary sexual behavior between consenting adults. It's dealing with the consequences of sexual behavior and involves one consenting adult and an unconsenting item, whose status is precisely what the argument is about.

  • Smooth Like a Rhapsody||

    I totally agree with Lee, but write separately, to emphasize that the number--even on abortion, which is, of course, what all the lefties are in a conniption about--is almost certainly close to 90%, if we allow the democratic process to set the law.
    Most 1st term abortions would remain legal in most jurisdictions.
    The major problem with this hypothetical is that Roe vs. Wade has so poisoned the debate that both sides might have hardened much more than they would have if Roe had never been decided.

  • Stephen Lathrop||

    I imagine there are plenty of conservatives who disapprove, on moral grounds, of adultery, fornication, homosexual sexual activity, contraception - but I can't imagine you'd get even 10% of voters to vote for the criminalisation of any of these things.

    Well, the relevant sample for your reply isn't "voters," it's conservative voters. If there were some way to know you could get valid answers, I would happily make non-trivial wagers, and give odds, that among conservatives more than 20% would vote to criminalize homosexual activity, contraception, and pornography. If you think otherwise, I suggest a sojourn in the South.

    Just in passing, I have little doubt that voters (all taken together) in 1788 would have been notably more liberal on these subjects.

  • Rev. Arthur L. Kirkland||

    Right-wingers were fighting nearly to the death over the right to engage in gay-bashing as recently as a few years ago. Then, as soon as they lost to their betters, they wanted to pretend that they never were bigots.

    We have seen the same thing with respect to racism. Nobody admits today that he was a vicious racist in the '50s and '60s, even in Alabama and Mississippi. Those blacks must have been beating themselves on that bridge in Selma, and the Freedom Riders must have committed suicide and buried themselves . . . if you believe the southerners' current alibis.

    When the great liberal-libertarian alliance makes progress against the aspirations and efforts of conservatives, the conservatives pretend they were on the right side all along. Heck, today's bigots don't even like to be known as bigots, at least not publicly. They save their genuine opinions on women, blacks, gays, immigrants, Muslims and others for the safe spaces of their living rooms, their militia gatherings, and their local Republican committee meetings.

  • Lee Moore||

    If there were some way to know you could get valid answers, I would happily make non-trivial wagers, and give odds, that among conservatives more than 20% would vote to criminalize homosexual activity, contraception, and pornography.

    I doubt it, but let's stipulate that you're right for the sake of argument. However that wasn't my original deal. You've forgotten the quid pro quo - which was that the conservatives would leave the liberals alone if the liberals left the conservatives alone.

    So even if 20% of conservatives (stipulated) were willing, in the absence of a deal, to vote to criminalise all that stuff, most of them would still take the deal.

    Which will not be offered to them, obviously.

  • santamonica811||

    I wonder why my previous post was deleted/censored? No profanity, nothing particularly dramatic or shocking. Very odd.

  • David Nieporent||

    I really hate the phrase "prior precedent." What other kind of precedent could there be?

  • James Pollock||

    There's the kind of precedent you're trying to set, but which doesn't yet exist.

  • Lee Moore||

    The Schumer statement of the McConnell rule is an excellent example of precedent that is not prior precedent.
    It's brand new, but badged as old.

  • bernard11||

    I'm dubious that this sort of analysis actually demonstrates much of anything.

    First, as the OP says, the number overturned depends in part on how many cases are heard.

    Second, does every case offer the chance to overturn a precedent? If not, then the number actually overturned really says nothing until we look at opportunities. The rate should not be per term but per cases that offer the opportunity.

  • W Tx Intermediate Crude||

    IANAL.
    Mr Adler defines an "activist court" as one that overturns prior court decisions.
    My definition differs.
    An activist court in my view is one that creates or destroys law without specific reference to the constitution,as amended, using more of the elastic clause than I like it to.
    It can overrule Korematsu, Plessy, and Scott all day, and I'll be happy. The court created thse, and can modify or destroy to its heart's content.
    Allowing the ACA as a tax, when there is no mention of healthcare in the Constitution, is too much elasticity.
    Mandating toleration of same sex marriage and abortion- too much elasticity.
    A state should be able mandate cake baking (not in the way Colorado did it, but fairly) if it wants to; a state should also be able to allow discrimination in other than constitutionally forbidden areas if it wants to.
    Your activity ends where my nose begins.

  • Stephen Lathrop||

    Once again, however important it may be to identify Supreme Court activism generally, the sharper test would be to identify partisan activism specifically. I suggest that the right way to do that is to look only at cases which speak directly to questions of political process, political funding, and political results—and leave aside other cases which may provoke sharply divided partisan interest, but which do not otherwise directly affect politics.

    Apparently no one has undertaken to tabulate either the outcomes of such cases, or to total the number taken up for review by various Courts in various eras. I suggest that if those questions were answered, the Roberts Court would be shown by those measures to be the most politically activist court ever.

    I could be wrong, of course. I wish I knew how to do that research myself. But not being a lawyer, I haven't the command of the legal research tools necessary. Any takers?

  • Smooth Like a Rhapsody||

    the Roberts Court would be shown by those measures to be the most politically activist court ever.

    Why do you "suggest" this?
    I could understand a left winger coming to this intuitive conclusion, if, say, the Court had overturned Obamacare.
    But how does such a person come to this conclusion given the facts as they are?
    Also, your metric isn't scholarly in that the choice of cases will always reflect the political biases of the chooser. Whichever cases my side gets most riled up about are the cases that the Court--if it is not activist--needs to rule on a certain way to avoid the taint of "activism".
    Properly defined, a decision which wholly re-writes F.R.C.P. 4 is just as "activist" as a decision that overturns Roe.

  • Stephen Lathrop||

    Smooth, you seem not to grasp what I said. A decision that overturned Roe wouldn't be included in the metric I want to see. That case is a hot button political issue, because the parties cleave over it, but the subject of the case isn't politics per se. Same for Obamacare.

    The cases I want compared are those that center on the practice of politics itself. Political funding cases. Gerrymandering cases. Voting rights cases. ID for voting cases. Purging the voter list cases. Conduct at polling places cases. Donor anonymity cases. Recount cases. Stuff like that. It does not seem to be a hard distinction, whether a case fits that class.

    My impression, from memory, is that the Roberts Court has decided pro-Republican in every case of that sort. And also that the Roberts Court has taken more cases of that sort on its docket.

    I could easily be wrong on that. I didn't think of this as an issue until long after it would have helped to start noticing. And of course noticed even less about preceding courts. I doubt even the Court watchers here could answer accurately off the top of their heads. Which is why I think it would be interesting to look into.

    Perhaps you can see why outcomes among that class of cases could be taken as a metric of partisan activism, or the lack of it.

  • MonitorsMost||

    I think that's harder than you perceive. The voter purging case is a statutory interpretation case. ID for voting is generally statutory as well.

    The election financing cases have been difficult from the start in Buckley v Valeo. A per curium opinion with five concurrences in part and dissenting in part. Only one vote to uphold all the restrictions. Citizens United was not an outlier, it was the court grappling with a very hard question that has evaded easy answers for a long times. Especially since the communication at issue was advertisements for a documentary the FEC considered an electioneering communication.

  • jph12||

    "I could easily be wrong on that."

    You are. Even if just limited to this past term. Look up North Carolina v. Covington and Benisek v. Lamone, for example.

  • MonitorsMost||

    I dislike these attempts at empircism in regard to the court. The two most common are classifying decisions as liberal/conservative and restraint/activism. In this case, the Court can and often does refuse to follow precedent without expressly overruling said precedent. An excellent example is Bivens. The court has not expressly overruled the doctrine, but has minimized it to nothing.

    This desire to avoid overruling precedent to avoid appearing "activist" is harmful to the lower courts. If a previous ruling should fairly be overruled by a new decision, expressly do so.

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