Death of a Precedent

I pose this question to you: Will the Supreme Court overrule Roe v. Wade?

Put aside CNN, Fox, the New York Times and other news sources. Think about the question in light of this research— my article, “Death of a Precedent: Should Justices Rethink Their Consensus Norms?”

Post your thoughts on FB or email me at mhl@illinois.edu. I’m eager to hear your hunch and your reasoning. 

But first, some info. Roe was decided by a 7-2 vote in 1972 (46 years ago). There were no concurring opinions—a simple 7-2 vote. You might want to think about this information as you read the results of my study.

Here is a summary of my research article:

I explore the birth and death of Supreme Court precedents. Since its inception, the Court has explicitly overruled 205 of these cases. Some were created in a unanimous vote. Others emerged amid strife, a byproduct of polarized voting. My research asks: Did the margin of votes in these precedents affect their longevity? What effect did the number of concurring and dissenting votes have on a precedent’s life? Did the number of concurring and dissenting opinions shorten a precedent’s duration?

This study finds that overruled precedents which were decided with conflict tended to die early, while those decided by consensus usually lived longer. More specifically:

●         Overruled precedents lasted an average of 20 years.

●         Shorter-lived precedents (20 years or less) had more dissenting votes than longer-lasting opinions. For the former, only 23.6% had no dissenting votes; by comparison, 48.5% of longer-lasting opinions had no dissenting votes.

●         Among all overruled precedents, 19% were decided by a margin of one vote (e.g., 5-4 vote).

●         A precedent’s longevity was strongly correlated with the margin of votes and number of concurring opinions. Close cases with multiple opinions were more likely than others to be overruled.

I found that 26.3% of the overruled cases had one or more concurring opinions, while 59.5% of these cases had one or more dissenting opinions.

A plausible interpretation is that dissent alone does not shorten the life of a precedent; but when the majority is unable to unite in its reasoning for a ruling this double-layered fragmentation hastens the overruling of a precedent. In other words, the most fragile overruled precedents are those where the majority’s disarray compounds the effect of dissenting votes.

Given the centrality of stare decisis (precedent as establishing the rule of law), dissensus must be kept in check. If the Court is to maintain its vitality and pre-eminence, its overruled precedents should live longer. To the extent that Justices write a concurring opinion or vote to dissent in order to plump their reputations; or indulge a personal fancy, or reserve an issue for a future case, or cement their place in history as a swing voter or great dissenter, these judicial vanities infect precedents with dysfunction. The better approach is to reinvigorate the Court’s consensual norms—for example, by narrowing holdings to attract larger voting margins, and encouraging more communal decision-making.