Death of a Precedent: Should Justices Rethink Their Consensus Norms?

Will the addition of Justice Kavanaugh lead the Supreme Court to overrule precedents? As a nation, we are focused on this question to an unusual extent.

In 2014, I published a law review article that studied every precedent that the Supreme Court overruled. If you want to read “Death of a Precedent: Should Justices Rethink Their Consensus Norms?” click here and scroll down a bit, https://scholarlycommons.law.hofstra.edu/hlr/vol43/iss2/3/.

For now, here is a summary:

I found 205 paired cases of an overruling decision and the decision that was overruled. Point: The Supreme Court does not like to overrule itself. The rate is essentially one per year, though this fluctuates (click on picture, charts from my article, if you want details).

Looking at overruled precedents, more than half of them were only 20 years old, or less. They also tended to be fragmented rulings.

Let’s stop here: What precedents are less than 20 years old and have this fragmented pattern?

Obergefell v. Hodges is a 2015 case decided on a 5-4 vote. The 5–4 ruling requires all fifty states to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities.

National Federation of Independent Business v. Sebelius upheld “Obamacare” by a 5-4 vote in 2012.

Lawrence v. Texas was decided in 2003. The Court struck down the sodomy law in Texas in a 6–3 decision where a man was convicted for having anal sex in his residence with another man (a consensual act). Essentially, the six justices said that private consensual acts among adults are protected against state criminal laws.

Texas v. Johnson was decided in 1989. A man was criminally convicted for burning an American flag. By a 5-4 vote, the Court ruled that this flag burning was protected as free speech.

These cases have the characteristics of overruled precedents (the flag burning case is a bit out of range by age but I found plenty of cases like it).

What about Roe v. Wade? The case was decided in 1972— 46 years ago. The vote was 7-2.

This is not the type of case that is typically overruled.

That said, I found one case that overruled a 139 year-old precedent.

My study concluded: "There is something fundamentally wrong when -as I report here - half of the Court's overruled precedents survive twenty years or less. My findings show that the more an overruled precedent is fragmented, the shorter it lives….

Strong consensus does not immunize a precedent forever; however, it tends to extend a precedent's life. When Justices overrule a recent precedent decided by a large majority, they admit that they carry a heavy burden to justify their action."