Photograph by Nathaniel St. Clair
The first Monday in October commences a new United States Supreme Court term. This term, the court will hear many significant cases. However, the Supreme Court’s own reputation will also be up for judgment.
Part of that reputation is tied to the perception of the Court increasingly operating as a political body composed of nine politicians wearing robes. For years, the Supreme Court enjoyed significant legitimacy and public approval, far outstripping that of both Congress and the President. However, its approval has fallen in recent years, especially under Chief Justice Roberts. This is because the perception increasingly is that the Court is deciding cases not based on neutral legal principles but on the basis of ideology.
What best captures that is the public reaction to the 2022 Supreme Court decision Dobbs v. Jackson Women’s Health Organization. In that case, a six to three majority voted to overturn Roe v. Wade and the constitutional protection for a right to abortion. The six judges that voted to overturn Roe or limit it were all appointed by Republicans. The three opposed, appointed by Democratic presidents.
But Dobbs exemplifies a broader problem or trend in the Roberts Court. This is the proclivity of conservative justices appointed by Republicans to reject constitutional precedent.
Respect for constitutional precedent is a bedrock of American constitutional law. Following precedent promotes consistency, uniformity, and predictability in the law. It respects reliance interests, and it is meant to constrain judicial discretion. The Supreme Court is expected to follow its own constitutional precedent in the same way that it expects lower courts to follow them.
Rejecting precedent is an exception and not the rule. Former Supreme Court justices ranging from Benjamin Cardozo to Oliver Wendell Holmes Jr, have argued that precedent should only be rejected when it proves to be no longer workable, the conditions under which it was created have eroded, or that in some cases, when the precedent was wrong.
Over time, the Supreme Court has overturned its own constitutional precedent less than 150 times. Among notable decisions, Brown v. Board of Education overturned Plessy v. Ferguson when the former argued that racial segregation was not constitutionally protected. In Lawrence v. Texas it overruled Bowers v. Hardwick, declaring it got it wrong when in the latter case that sexual activity among gay individuals was not protected under a right to privacy.
But the question becomes, how often has the Roberts Court overturned constitutional precedent, and with that, who is more likely to overturn precedent?
From 2005 when Justice Roberts became chief justice through the 2022 term, there have been sixteen Supreme Court cases where the Court overturned a previous constitutional precedent of their own. What we learn is that justices display various levels of support for their own Court precedent. For example, in those sixteen cases, Chief Justice Roberts voted 62% of the time to reject constitutional precedent, whereas Justice Kagan only did so 33% at the time.
If we were to look at rejection of precedent and the total number of votes that justices cast in these sixteen cases, among those justices appointed by a Republican President, they voted 75% of the time to overturn constitutional precedent. Those appointed by Democrats did so 44% of the time. Partisanship matters when it comes to constitutional precedent on the Roberts Court.
Another question to ask is whether there is any relationship between political ideology and the decision to reject constitutional precedent? Are Justices identified as liberal or conservative more likely to reject constitutional precedent? Political scientists and judicial scholars have constructed what is known as the Martin Quinn measure for judicial ideology. It is a measure that ranks how conservative or liberal justices are based on their voting behavior in relation to the rest of the Court.
Using a Martin Quinn average for all the justices during their entire term on the court, Justices O’Connor and Anthony Kennedy scored near the center. Justice Sotomayor scored the most liberal, with Clarence Thomas and Anthony Scalia among the most conservative. In using this measure of ideology and applying statistical analysis, one finds that the correlation between ideology and rejection of precedent is 0.7. This is a high correlation. The more conservative the justice on the Roberts Court, the more likely that justice is to vote to overturn constitutional precedent. Ideology matters on the Roberts Court.
Unfortunately, the court and the justices do not look politically neutral, but increasingly operate as political actors in a political institution making political decisions. Whatever fidelity the Roberts Court majority gives to originalism as a neutral tool of constitutional interpretation, the reality is their decisions clearly display an ideological bias. That rejection of precedent also means individual rights generally lose.
Going into the 2024 Court term and the 2024 elections voters should remember partisanship and ideology matter on the Supreme Court, and both should be considered important as the public evaluates the court and their choice of presidential candidates.
