How Supreme Court Justices Respond to Litigant Requests to Overturn Precedent

• NCJ Number: 193304
• Journal: Judicature Volume: 85 Issue: 3 Dated: November-December 2001 Pages: 148-157
• Author(s): Jeffrey A. Segal; Robert M. Howard
• Date Published: 2001
• Length: 10 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

This article brings systematic social-scientific evidence to bear on how U.S. Supreme Court Justices react to requests that they overturn one of the Court's previous decisions.

Abstract

The data for this study consisted of all briefs on the merits filed by petitioners and respondents between the start of the 1985 U.S. Supreme Court term and the end of the 1994 term. Coders were trained to assess whether either the petitioner or respondent asked the Court to overturn a previous Supreme Court decision. These data were combined with data from Harold Spaeth's U.S. Supreme Court Judicial Database. To test the reliability of the data, the researchers double-coded 100 cases. The Court decided 1,297 cases on the merits that were docketed between the 1985 and 1994 terms. The most obvious finding was that parties were loathe to ask the Court to overturn any of the Court's prior precedents. In only 2.9 percent (37) of the cases did the petitioner ask the Court to overturn a precedent, and in only 2.3 percent of the cases did the respondent ask the same. Overwhelmingly, parties to a suit told the Court that unhelpful precedents could readily be distinguished from the current case. Of the 44 cases in which the Court considered overturning a precedent, it did so 19 times (43 percent). Most Justices most of the time chose not to overturn precedents when given the opportunity to do so. Every Justice but Rehnquist, Scalia, and Thomas voted to uphold precedent more than half the time. The analysis found that when faced with overturning a precedent, i.e., the condition under which support for stare decisis should be the strongest, only 4 of the 13 Justices (Brennan, Stevens, Kennedy, and Souter) demonstrated support that crossed ideological lines. Thus, most of the Justices were willing to overturn precedents when they disagreed with the Justices' ideological proclivities. Stare decisis survives at the Supreme Court, but it is conditioned on the attitudes and values of the current Justices. 3 tables