The Restrained Roberts Court

By Jonathan H. Adler

Thursday, July 13, 2023

 

Has the U.S. Supreme Court abandoned stare decisis, the doctrine of precedent? Are the Court’s conservatives amassing power at the expense of the other branches of government? Is the Roberts Court an “activist” court? Many legal commentators seem to think so, and such critiques have become a basis for progressive calls for various reforms, including the packing of the Court with additional justices. The Court has yet again “walked away from decades of precedent,” charged President Biden in response to its affirmative-action decision, adding that “this is not a normal Court.”

 

In a widely cited essay published in the Harvard Law Review Forum, Stanford’s Mark Lemley charges that the Court is curbing the power of Congress, the executive branch, state governments, and lower federal courts simultaneously and laying waste to its own precedents in the process. “The imperial Supreme Court,” as he labels it, is “dismantling” established legal norms, such as respect for precedent, as it remakes American law. “A Court that rejects stare decisis,” he warns, is “dangerous.” Georgetown University Law Center professor Josh Chafetz adds that this “judicial self-aggrandizement . . . has been a hallmark of the John Roberts years.”

 

Commentators and reporters generally accept that the current Court is more likely to overturn precedent and invalidate laws than we have come to expect. Yet this widely shared perception is wrong. Based on available metrics, the current Court is less likely than its predecessors to overturn precedents or invalidate legislative enactments. If such actions are the hallmark of judicial imperialism, the Roberts Court is not particularly imperialist.

 

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The charge that the Roberts Court has little respect for precedent is not new, but it has become more widespread since the Court’s decision to overturn Roe v. Wade in its ruling in Dobbs v. Jackson Women’s Health Organization. As Courthouse News reported, “the Roberts court has come to be known as eager to overturn precedent.” Law professor and television commentator Kimberly Wehle laments that “whatever conservative ethos of restraint there once was has vanished,” adding that “respect for precedent” no longer serves “as a check on the power of the Supreme Court.” In recent rulings, the Court has “paid no attention to the principle of stare decisis and following precedent,” adds Erwin Chemerinsky, dean of the law school at the University of California, Berkeley. Georgetown’s Lawrence Gostin concurs, charging that the “adage” that “we always follow precedent, except in extraordinary circumstances, . . . has been turned on its head.” “It’s clear that the court has been an activist conservative court, taking us back instead of adhering to precedent,” charges Representative Hank Johnson (D., Ga.), the ranking Democrat on the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet.

 

Contrary to such claims, the Roberts Court is the least likely of any court since World War II to overturn precedent. The Warren, Burger, and Rehnquist Courts all overturned Supreme Court precedents at a higher rate than the Roberts Court, and it is not particularly close. Compared with its predecessors, the Court under Chief Justice Roberts has largely maintained the status quo.

 

The Library of Congress (LOC) keeps track of when the Supreme Court reverses precedent (a record available on the website Constitution Annotated). Whether one looks at the number of precedents overturned or the frequency with which the Court issues a ruling that rejects stare decisis, it becomes clear that the Roberts Court is far more status quo–oriented and restrained than other Courts of the past 70 years. According to the LOC’s data, both metrics show that the Roberts Court overturns precedents fewer than 1.5 times per Supreme Court term. This is less than half as often as the Warren and Burger Courts overruled precedent, and significantly less than the Rehnquist Court, which overturned precedents more than twice per term on average.

Other analyses of the Supreme Court’s decisions show the same thing. The Supreme Court Database, compiled at Washington University in St. Louis, pulls in more cases than does the LOC, by including those that depart substantially from prior holdings without expressly overturning them. Using this metric, the Roberts Court departs from precedent less often (an average of 1.65 times per term) than did the Warren (3.06), Burger (3.41), and Rehnquist (2.42) Courts before it.

 

Some commentators note that the decline in decisions that overturn precedents is a result of this Court’s decision to hear fewer cases and that the Court is actually revising precedent in a greater share of the cases it hears than did its recent predecessors. These observations are correct but incomplete. Put in their proper context, they further undermine the claim that the Roberts Court is antagonistic to precedent.

 

The Supreme Court routinely decided over 100 cases per term in the 1950s, 1960s, and 1970s. In the 1980s, the Court’s caseload was as high as 167 in a single term. Since then, the Court’s docket has shrunk dramatically. In 1988, Congress gave the Court more control over its docket, sharply reducing the number of cases it was required to hear. Today the Court grants a petition of certiorari only if at least four justices vote in favor. In hearing fewer cases, the Court chooses to give itself fewer opportunities to overturn precedent. A Court intent on remaking the law by altering or reversing precedent would not make this choice. Even if the current Court has taken some cases (such as Dobbs) with an eye to reconsidering certain precedents, it’s still true that fewer precedents are being reconsidered overall.

 

To say the Roberts Court overturns precedents less often than did its post–World War II predecessors is neither to praise nor to condemn it. Whether the Court should overturn a precedent or adhere to stare decisis in a given case depends on the question at hand, whether prior cases were correctly decided, and what one believes the Constitution or other sources of law require, among other things. These are normative questions on which reasonable people may disagree. While there is room to debate how often the Court should reconsider precedent, and in which cases, the data are rather clear on the frequency with which each Court has done so.

 

It is fair to note that not all cases — nor all precedents — are created equal, and some observers have considered the precedents that the Roberts Court has overturned to be especially important. But there is no neutral measure of a precedent’s importance. Most people likely think the Dobbs decision to overturn Roe v. Wade was more important than the overturning of Nevada v. Hall’s holding on state sovereign immunity in Franchise Tax Board of California v. Hyatt. But was Dobbs more significant than the Court’s 2002 decision in Atkins v. Virginia to overrule Penry v. Lynaugh and declare the execution of an intellectually disabled person to be a violation of the Eighth Amendment? And if so, by how much? And what about decisions that overturned precedents concerning the rights of criminal defendants to confront their accusers, or the authority of states to tax out-of-state businesses, or the application of the 14th Amendment’s liberty and equality guarantees to homosexual conduct and gay marriage?

 

The biggest change on the Supreme Court in the past six years has not been the rate at which it has been willing to change the law by overturning precedents but rather the Court’s jurisprudential orientation. Replacing Justices Anthony Kennedy and Ruth Bader Ginsburg with Brett Kavanaugh and Amy Coney Barrett has produced a more conservative Court. As a consequence, when it overturns precedent, it is more likely to do so in a way that moves the law in a conservative direction. But the rate at which such precedent-altering decisions are made has not increased (at least not yet). Should the Court return to its Warren-era approach to stare decisis, then there will be ample opportunity to critique its conduct.

 

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A similar story can be told about the Court’s propensity to invalidate legislative enactments. Critics charge the Court with usurping power by its declaring certain pieces of legislation unconstitutional and thereby hamstringing democratic self-governance. Here, again, the claims do not correspond to the facts.

 

In a recent New York Times op-ed, for instance, Georgetown’s Chafetz argued that the Supreme Court’s “judicial power grab” has earned the nation’s contempt. According to Chafetz: “Over roughly the past 15 years, the justices have seized for themselves more and more of the national governing agenda, overriding other decision makers with startling frequency.” Stanford’s Lemley makes a similar charge, accusing the Court of “withdrawing” power from Congress and state governments by declaring their enactments invalid.

 

Like the claims about stare decisis, the charge that the Roberts Court is more prone to declaring statutes unconstitutional is neither new nor true. Referring again to the LOC’s Constitution Annotated and the Supreme Court Database, one readily sees that the accusations against the Roberts Court are false. The Roberts Court has done far less to consolidate power in the judiciary by declaring legislative enactments unconstitutional than did the Warren, Burger, and Rehnquist Courts. By this measure, it was the Burger Court that was most active, declaring legislative enactments void more than ten times per term, which is more than twice as often as the Roberts Court has. It seems that Court commentators forget how the Warren and Burger Courts remade the entire law of criminal procedure and restructured state governments while also unearthing a wide range of previously undiscovered procedural and substantive guarantees in the 14th Amendment.

 

If one looks exclusively at federal law, the disparities between the various post-war courts narrow, but they still do not justify the allegations. The Roberts Court has declared federal laws to be unconstitutional slightly more often than did the Warren or Burger Courts, but less often than did the Rehnquist Court. So much for the claim that the Court began seizing power from legislative decision-makers 15 years ago.

The one area where the Court’s critics may have a point concerns executive power. Recent research has shown that the Court is more likely to challenge the executive branch than it was in years past, but this still doesn’t fit the judicial-power-grab narrative. Many of the cases in which the Court has recently challenged the executive concerned national security, and progressive commentators have largely cheered the increase of judicial scrutiny in such cases. Others involved judicial review of agency actions, which considers whether the executive branch has acted in accord with legislative instructions and observed the limits imposed by federal law. Whatever the merits of the Court’s decisions to push back against the administrative state, it is hard to argue that they have been antidemocratic or have undermined self-governance, particularly when the Court has made clear that Congress retains the authority to act.

 

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There is no question that the current Supreme Court is more conservative than the nation’s elites. Lawyers generally are to the left of the American public, and legal academics and opinion leaders are further left still. That legal commentators and pundits dislike the Court’s recent decisions and fear what the Court may do in the future is completely unsurprising. Yet, rather than make the case against the Court on ideological grounds, they seek to characterize it as out of control. Rather than attack the Court for being too conservative, they label it “imperial” or “activist.” This enables them to assail a decision such as Dobbs, which returned the question of abortion to the people’s elected representatives, without having to defend a decision such as Roe v. Wade, which effectively rewrote the law of abortion in all 50 states.

 

The claims that the current Court is more likely than its predecessors were to overturn precedent or invalidate legislative enactments are often not just wrong but intellectually dishonest as well. Few of the Court’s progressive critics care about precedent as such. They were perfectly happy when Justice Anthony Kennedy wrote opinions overturning precedents they did not like, as in Lawrence v. Texas (which overturned Bowers v. Hardwick) and Obergefell v. Hodges (overturning Baker v. Nelson). And these recent converts to the virtues of judicial restraint didn’t complain when the Court constrained the use of the death penalty or struck down laws limiting offensive speech or access to abortion. They might also be perfectly happy were the Court to overturn conservative precedents regarding the Second Amendment (such as District of Columbia v. Heller) or campaign finance (Citizens United v. Federal Election Commission). Most of those who were aghast that the Supreme Court invalidated portions of the McCain–Feingold campaign-finance reforms in Citizens United were content to see it strike down the Military Commissions Act and reject the Bush administration’s enemy-combatant-detention policies in Boumediene v. Bush.

 

The reality is that some precedents should be overturned and some federal or state laws should be declared unconstitutional. It is also the case that the nation is divided over when such steps are warranted. I approve some of the Roberts Court’s decisions in each of those categories and disapprove of others — but, in each case, my evaluation is based on my sense of the merits of the case and the Court’s arguments. Accusations that the Court is vaporizing precedent and trampling democratic enactments — suggesting that it is not merely making bad decisions but doing so in an illegitimate way — are part of a broader effort to delegitimize it.

 

For many decades and with some regularity, the Court has overturned precedents and struck down legislative enactments. But so long as most such decisions moved the law in a progressive direction, legal elites mostly bit their tongues. What is different about the Roberts Court is not that it is keener to change the law but that, when it does so, it is more likely to shift doctrine in a conservative direction. If that makes the Court “not normal,” as President Biden recently charged, and if that is supposed to be a problem, then the Court’s critics should make their case openly and honestly.