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.

In the July 31 issue of National Review, in an article titled "The Restrained Roberts Court," I explain why some common criticisms of the current Supreme Court are simply untrue. In particular, I explain that the Roberts Court overturns precedent and holds legislative enactments unconstitutional significantly less often than did the Warren, Burger, or Rehnquist Courts. In other words, the Roberts Court is meaningfully less "activist" than its post-WWII predecessors, at least as measured by conventional metrics.

From the article:

Commentators and reporters generally accept that the current Court is more likely to overturn precedent and invalidate laws than we have come to expect. Yet this widely shared perception is wrong. Based on available metrics, the current Court is less likely than its predecessors to overturn precedents or invalidate legislative enactments. If such actions are the hallmark of judicial imperialism, the Roberts Court is not particularly imperialist. . . .

the Roberts Court is the least likely of any court since World War II to overturn precedent. The Warren, Burger, and Rehnquist Courts all overturned Supreme Court precedents at a higher rate than the Roberts Court, and it is not particularly close. Compared with its predecessors, the Court under Chief Justice Roberts has largely maintained the status quo.

This is not anything new. Folks have been charging that the Supreme Court under Chief Justice Roberts has been abandoning precedent for years. As I have shown in prior posts going back years, the data did not support such charges then, and it does not support such charges now.

	Terms	Cases Overruled	Overruled/Term	Overruling Cases	Overruling/Term	Alteration/Term (SCD)
Warren Court	15	64	4.27	45	3.00	3.06
Burger Court	17	70	4.12	52	3.06	3.41
Rehnquist Court	19	50	2.63	41	2.16	2.42
Roberts Court	17	25	1.47	19	1.12	1.65

 

While it may well be the case that the current Court, over time, may begin overturning precedents at a higher rate than its post-WWII predecessors, we have not seen that yet (and that is true whether one treats the Roberts Court as a single court, or if we divide it into a "First" and "Second" Roberts Court with the change occurring either when Justice Kavanaugh replaced Justice Kennedy or Justice Barrett replaced Justice Ginsburg.)

As in my prior analyses, I based my claims looking at three data sets, two compiled by the Library of Congress (precedents overturned per term and decisions overturning precedent per term) and one from the Supreme Court database (precedents altered per term). All three data sets produce similar results.

The number of precedents overturned per term may be lower in the Roberts Court, but are the precedents overturned more longstanding or significant? It does not appear they are any older or more longstanding. The average age of precedents overturned by the Roberts Court (38 years old) is older than that of the Warren Court (22 years old), but comparable to that of the Burger (35) and Rehnquist (39) Courts.

What about significance? From the article:

It is fair to note that not all cases — nor all precedents — are created equal, and some observers have considered the precedents that the Roberts Court has overturned to be especially important. But there is no neutral measure of a precedent's importance. Most people likely think the Dobbs decision to overturn Roe v. Wade was more important than the overturning of Nevada v. Hall's holding on state sovereign immunity in Franchise Tax Board of California v. Hyatt. But was Dobbs more significant than the Court's 2002 decision in Atkins v. Virginia to overrule Penry v. Lynaugh and declare the execution of an intellectually disabled person to be a violation of the Eighth Amendment? And if so, by how much? And what about decisions that overturned precedents concerning the rights of criminal defendants to confront their accusers, or the authority of states to tax out-of-state businesses, or the application of the 14th Amendment's liberty and equality guarantees to homosexual conduct and gay marriage?

The article shows how there is a similar story to be told when it comes to Court decisions declaring legislative enactments to be unconstitutional. The Roberts Court is doing that less than its post-WWII predecessors as well.

Note that these trends coincide with the Court hearing fewer cases, and this is largely due to the justices' collective decision to hear fewer cases. Hearing fewer cases means there are fewer opportunities to overturn precedent, declare statutes unconstitutional, or otherwise shift the law. The cases which produce such outcomes may be a larger share of the Court's overall decisions, and such cases may have a more consistent ideological valence than before, but as a quantitative matter, the Court is still doing less.

One claim about the Roberts Court that I think has greater merit is that it has is more skeptical of the executive branch than its predecessors have been. I think this is a fair claim, and is the result of a longer term trend. Across the board the Court has become less deferential to the executive branch over time. This is true in the context of administrative law (going from, say, SEC v. Chenery II to West Virginia v. EPA) but in areas like national security as well (going from Ex parte Quirin to Boumediene v. Bush).

What is most different about the Roberts Court is not that it is more likely to overturn precedent or declare statutes to be unconstitutional. What is different is that it is a more consistently conservative court than its predecessors. The Burger Court had a supermajority of justices appointed by Republican presidents, but was not particularly conservative. While the Rehnquist Court was thought by some to be fairly conservative, it issued plenty of decisions overturning precedents or declaring statutes to be unconstitutional that most would consider to be "liberal" decisions. Lawrence v. Texas and Roper v. Simmons are good examples.

During the first twelve years of the Roberts Court, the Court tended to be conservative, but not consistently, and certainly not consistently in cases in which precedents were reconsidered or statutes held unlawful. Justice Kennedy was the median justice during this period and the Court's decisions to overturn precedents and reject statutes largely tracked his particular jurisprudential vision, and this often meant decisions overturning precedents or rejecting statutes while moving the law in a "liberal" direction. Obergefell v. Hodges and Kennedy v. Louisiana are good examples.

When Justice Kennedy was on the Court, he was the median justice on a Court that was otherwise 4-4. This meant that his preferences often controlled. Chief Justice Roberts and Justice Kavanaugh may be the median justices on the current court, but both of them are more consistently conservative in their rulings than was Justice Kennedy. Further, for the Court to overturn precedent or reject a statute on "liberal" grounds, the concurrence of more than one conservative justice is required. So we may get an occasional decision in which, say, Justice Gorsuch and Justice Barrett join the three progressive justices to overturn a conservative precedent, but such cases are likely to be rare.

This change in the court affects what cases the Court agrees to hear as well. It takes four justice to grant certiorari, so the three progressive justices lack the ability to force the Court to hear a case that concerns them (and they may not want to force the consideration of such cases either, as they may not like the outcome). This only reinforces the likelihood that when the Court decides to reconsider a prior precedent, it is more likely to reconsider a precedent about which the conservative justices are skeptical, and any resulting decision will likely move the law in what most would consider to be a conservative direction.

My National Review article concludes:

The reality is that some precedents should be overturned and some federal or state laws should be declared unconstitutional. It is also the case that the nation is divided over when such steps are warranted. I approve some of the Roberts Court's decisions in each of those categories and disapprove of others — but, in each case, my evaluation is based on my sense of the merits of the case and the Court's arguments. Accusations that the Court is vaporizing precedent and trampling democratic enactments — suggesting that it is not merely making bad decisions but doing so in an illegitimate way — are part of a broader effort to delegitimize it.

For many decades and with some regularity, the Court has overturned precedents and struck down legislative enactments. But so long as most such decisions moved the law in a progressive direction, legal elites mostly bit their tongues. What is different about the Roberts Court is not that it is keener to change the law but that, when it does so, it is more likely to shift doctrine in a conservative direction. If that makes the Court "not normal," as President Biden recently charged, and if that is supposed to be a problem, then the Court's critics should make their case openly and honestly.