Wednesday, July 18, 2018
This is my second post in what I hope will be a series about overruling & the Supreme Court.
As we hurdle toward confirmation hearings for Brett Kavanaugh, public discourse has continued to center on stare decisis: will the post-Kennedy Roberts Court undo significant chunks of precedent.
If it did, this would mark a change for the Roberts Court. As I mentioned in my last post—and as Jonathan Adler discusses more fully at the Volokh Conspiracy—the Roberts Court has overruled precedent less frequently than its predecessors.1 The slowdown began in the 2007 term, the first in 50 years where the Court didn’t overrule a single precedent. From the 2007 term through the 2016 term, the Court overruled itself nine times. That is, by modern measures, a stately pace: the Rehnquist, Burger, and Warren Courts averaged 2-3 undoings per year.
So can a small change in personnel shift the stare decisis dynamic of the Court? Recent history provides an obvious example: the retirement of Felix Frankfurter and the appointment of Arthur Goldberg (and later Abe Fortas). The Warren Court has an evidence-based reputation for aggressively overruling precedent. Chief Justice Warren’s tenure was bookended by major overrulings, from Brown v. Board of Education in his first term to Chimel v. California and Brandenburg v. Ohio in his last.
But the Warren Court’s story on stare decisis is a tale of two Courts. From the 1953 through the 1961 term, the Court overruled itself only 10 times, a pace of barely over once per year. This rate was slower than the Court’s under Warren’s predecessor, Fred Vinson, and slower than that of any subsequent Court until the post-2006 Roberts Court.
And then came the 1962 term. Bang: six undoings. Then six more in 1963. Then 24 times from the 1965 through 1968 terms. From the 1962 through 1968 terms, the Court overruled precedent an average of 5+ times per term.
What changed? Felix Frankfurter. Justice Frankfurter was, of course, a leading advocate of judicial restraint (though his voting record, on some issues, tells a more complex story). And one can certainly see signs of Frankfurter’s resistance to the impending Warren Court revolution: he dissented in precedent-altering cases regarding the exclusionary rule (Mapp v. Ohio) and the one-person/one-vote doctrine (Baker v. Carr). When he retired, the dam broke: President Kennedy appointed Arthur Goldberg, and milestone undoings like Gideon v. Wainwright, Miranda v. Arizona, and Katz v. United States followed.
We see a similar shift in 1937. In Charles Evans Hughes’s first seven terms as Chief Justice, the Court overruled precedent six times. But in has last four terms, it undid itself 17 times. The shift coincided with a significant change in personnel: Willis Van Devanter, one of the conservative Four Horseman, retired; he was replaced by Franklin Delano Roosevelt’s first appointment, Hugo Black.
We certainly can’t attribute these shifts entirely to changes in a single justice. In both instances, winds of change were already blowing, Just before Justice Van Devanter retired in 1937, the Court famously reversed course on the constitutionality of state minimum wage laws; perhaps Justice Owen Roberts’s change of position would have left the dam broken even without the Black-for-Devanter swap. And perhaps, as Frankfurter-era decisions like Mapp v. Ohio and Baker v. Carr suggest the Warren Court revolution would have rolled on even with Justice Frankfurter on the Court; indeed, many of the post-Frankfurter overrulings were by lopsided votes.
Still: a key change of personnel on a closely-divided Court can alter the dynamics of stare decisis.
So will this happen on a Kavanaugh-for-Kennedy Court? Perhaps not, at least in ways that bust the y-axis on a graph. As Professor Adler notes, the Roberts Court to this point has been the Kennedy Court. The Court’s overrulings are part of this story: when the Roberts Court has overturned precedent, it almost always has been because Justice Kennedy wanted to do it. The Court has, if one counts aggressively, overruled precedent 19 times. Justice Kennedy assented to the overruling 16 of those times (he dissented twice in Roberts-Court overrulings; in one case, he concurred in the judgment, but did not endorse the undoing of precedent). Several of these times, Justice Kennedy was in the majority in a 5-4 decisions. And, while several of these decisions skew conservative (think Citizens United), others were not (think Obergefell).
As Professor Adler points out, Justice Kennedy was not a disciple of judicial restraint. So it’s entirely possible, even with a shift in Court personnel that will be transformational on many issues, that the Roberts Court’s complex incrementalism will continue. Doctrinal change: yes. Frontal assaults on stare decisis: maybe not.
But we can safely say one thing: there will be overrulings next term. I’ll talk about that in my next post.
- Professor Adler bases his analysis on a list produced by the Government Publishing Office. That list is a bit incomplete: it does not, for example, include any cases from the October 2006 term, in which the Court overruled precedent four or five times, depending on how one classifies Parents Involved in Community Schools v. Seattle School District No. 1. The Supreme Court Database aggressively codes PICS as “altering precedent,” apparently because of Justice Breyer’s musings in dissent (“What has happened to stare decisis?”) and the Chief Justice’s rebuttal that the justices were not “tacitly overruling” Grutter v. Bollinger. For classification purposes, I think the Supreme Court Database gets this one wrong. Justice Breyer’s “tacit overruling” criticisms are mostly targeted at portions of the lead opinion where Chief Justice Roberts wrote for a four-justice plurality. And both the Chief and Justice Kennedy’s concurring opinion take pains to distinguish rather than alter Grutter. ↩︎