The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.