Precedent: Which Justices Practice What They Preach

While Supreme Court Justices are by no means bound by their past decisions, the Court often respects its past decisions for a variety of reasons. The reasons given for adhering the Court’s past precedents are often across between cases. Justice Kagan offered her interpretation for remaining faithful to precedent in dissent in last term’s Knick v. Township of Scott which overturned the Court’s previous precedent on the issue of eminent domain in the state law context from Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City:

“[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Stare decisis, of course, is “not an inexorable command.” Id., at 828. But it is not enough that five Justices believe a precedent wrong. Reversing course demands a “special justification—over and above the belief that the precedent was wrongly decided.”

This respect does not mean that the Court doesn’t regularly strike down its past decisions. The Court has reversed at least one of its past decisions in every term of the Roberts Court and, per the Supreme Court Database, has averaged overturning over three past decisions a term since 1946.

In a prominent 1996 scholarly article, Professors Jeffrey Segal and Harold Spaeth wrote (paywall link) about how justices that dissent in important cases dealing with distinct issues continue to dissent in future cases on the same issues even when the direction of the precedent clearly moves in the opposite direction (think of a justice that dissented in Roe v. Wade and then continued to dissent in subsequent abortion decisions that revisited the question of a constitutional right to an abortion). They described this as a test of the strength of stare decisis as a constraint on Supreme Court decision making. Their evidence was overwhelming. Of the 15 justices’ decisions they analyzed, no justice voted in favor of precedent over their past dissenting direction more than one-third of the time. 

The seeming rigidity with which justices hold to their past dissents in an area of law makes Chief Justice Roberts concurrence in June Medical v. Russo, where he switched directions from his previous dissent in Whole Woman’s Health v. Hellerstedt due to concerns for stare decisis, that much more surprising. In this concurrence Roberts wrote,

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case…The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons.

In another decision this term, Justice Kagan surprised many by joining Justices Alito and Roberts in dissent in Ramos v. Louisiana, likely for the sake of voting to uphold the precedent that was reviewed (and ultimately overturned) as part of this decision. In this vein, Alito’s dissent begins, “The doctrine of stare decisis gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered.”

Recently, Professor William Baude wrote an article that, while not arguing for strong adherence to stare decisis, describes the necessity of a theory of precedent for when cases should be overruled.  Baude cites Justice Thomas’ concurrence in last term’s Gamble v. United States, which discusses reasons for a less strict adherence to the Court’s past decisions, as an example of a theory deserving of addition scholarly and legal scrutiny. 

In this concurrence Thomas wrote,

In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements of the law,” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 3), and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”

In a somewhat similar vein Justice Scalia wrote in his dissent in Lawrence v. Texas, the decision that overturned the Court’s previous decision upholding a state law banning sodomy in the privacy of one’s own home, that, “I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine.”

While defining a theory of adherence to precedent is a noble cause, the possibility discussed below, that ideology combined with different visions of respect for precedent, are strong drivers in such decisions, seemingly places a substantial roadblock in front of any coherent theory.  At very least these views show that the justices articulate a spectrum of different perspectives on the issue. The views also do not necessarily reflect actions, however. The analyses below look at the justices’ deference to precedent, when they choose to defer, and when they choose not to do so. It looks at cases where the Court clearly reviewed past decisions since Chief Justice Roberts was appointed to the Court in 2005. It also splits these cases into ones where precedent was overturned (22 according to the Supreme Court Database and questions presented to the Court in cert petitions for cases that were argued during this period) and cases where precedent was reviewed and ultimately upheld (32 according to a case law searches for the terms “stare decisis” and “overturn” near “precedent.”)

Only Ginsburg, Breyer, and Thomas ruled on all 54 cases.

Gorsuch and Kavanaugh’s rates for voting to overturn precedent should probably be reviewed with a grain of salt since their case counts were low relative to those of the other justices.

Looking a few other summary metrics, the swing justice for the majority of the time period, Justice Kennedy, was by far the most dominant majority author when precedent was altered.

When precedent was reviewed but went unaltered, Justice Breyer led the way with six authored decisions followed by Justices Roberts, Kagan, and Alito with four majority opinions each. The justices with little to no majority authorship in these decisions is telling as well. Justices Ginsburg, Breyer, Kagan, and Kavanaugh (though he only sat on nine of these cases) each authored no majority opinions where precedent was altered and Justice Sotomayor only authored one. Justice Sotomayor also authored only one majority opinion when precedent was reviewed but went unaltered.

The majority of these decisions, both altering precedent and reviewing but not altering precedent, both came down to 5-4 votes.

Although a small number of decisions altering precedent were unanimous, and a portion of both sets of decisions came down to majorities of more than five justices, the five justice majorities tended to dominate both categories and were more prevalent when precedent was altered than when it went unaltered.

The justices have three rates of interest here. These include rates that reflect their votes in favor of overturning precedent in cases altering precedent, in the ones that did not alter precedent, and then a global rate for all cases where they voted.  First a look at votes in favor of overturning precedent in cases where the decision let the existing precedent stand.

Justice Gorsuch was the only justice to reach the 50% overturn vote rate threshold with most justices’ ranges between 20% and the low 30%’s.  Since he voted in all but one decision, of the justices that were present on the Court in most of these cases, Justice Roberts clearly chose to vote against overturning precedent most frequently in cases where precedent was upheld.

The rates begin to take on much more of a pattern when examining votes to overturn precedent in cases where precedent was overturned.

While Chief Justice Roberts expounded on the need for deference to precedent in his concurrence in June Medical, he voted to overturn precedent in over 77% of the decisions where the Court overturned precedent since 2005 and had a greater rate than his conservative colleague Justice Alito.  The conservative justices on the Court for this period all had greater rates voting to overturn precedent than their liberal counterparts (Souter and Stevens weren’t focused on for this analysis because they both retired by the 2010 Term).  Even Justice Kennedy, the Court’s swing vote, voted to overturn precedent almost 90% of the time when precedent was altered.  These percentages mixed with the vote breakdowns underscore the point that conservative justice coalitions were by and large in the majority for these cases while liberal justices were in dissent. A question that is more difficult to untangle and will not be undertaken in this post is whether and to what extent ideology was a driving factor in these decisions as opposed to respect for precedent.

The global rates look much like the precedent altering rates with a few exceptions.

Justice Gorsuch is quite ahead of the pack as he voted to overturn precedent in three-quarters of the cases he helped decide where a past precedent was reviewed.  The conservative justices’ and Justice Kennedy’s rates fall mainly towards the higher end of this graph, although the differences are not as stark as they were in the precedent altering graph.

Returning to the two justices that were both in the majority in June Medical and in dissent in Ramos, both seemingly for the reasons of respect for precedent, Justices Roberts’ and Kagan’s overall vote to overturn rates both reflect respect for existing precedent. While Justice Roberts’ overall rate is the lowest of the conservative justices, it is only a few percentage points lower than Justice Scalia’s.  Justice Kagan had the lowest vote to overturn rate of all the justices during this period at just over 33%. This in turn provides credibility through action for her claim of general support for the Court’s past rulings.

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