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Title
Explaining the Overruling of U.S. Supreme Court Precedent
Permalink
https://escholarship.org/uc/item/4ht6r11q
Authors
Spriggs, James F., II
Hansford, Thomas G.
Publication Date
2002-11-25
Supplemental Material
https://escholarship.org/uc/item/4ht6r11q#supplemental
Peer reviewed
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University of California
Explaining the Overruling of U.S. Supreme Court Precedent
James F. Spriggs, II
Department of Political Science
University of California, Davis
Davis, CA 95616
(530) 752-8128
jfspriggs@ucdavis.edu
Thomas G. Hansford
Department of Political Science
University of California, Davis
Davis, CA 95616
(530) 752-0967
tghansford@ucdavis.edu
Forthcoming in Journal of Politics
A previous version of the paper was presented at the annual meeting of the Midwest Political Science Association,
Chicago, IL, April 23-25, 1998. The au thors wish to tha nk Marc us Cuda, of the U.C. Davis Social S cience D ata
Service, for assistance in managing the data used in this paper. Sprigg s recognizes funding from the U.C D avis Institute
of Governmental Affairs/IGCC Research Fellows Program for collection of the Shepard’s Citation
data. We also thank
Wes D uenow, La rry Eichele, Randy Gee, Robin H astings, Danielle Perry, Brandon Reeves, Da vid Richar dson, Jam ie
Scheidegger, and Danny Williams for research assistance in gathering the Shepard’s Citation
data. We further
appreciate the helpful comments of Neal Beck, Sara Benesh, Saul Brenner, Dave Damore, Lee Epstein, John Gates,
Michael Giles, Mark Kemp er, Jeff Segal, and Harold Spaeth.
Explaining the Overruling of U.S. Supreme Court Precedent
Abstract
The decision to overrule precedent, we argue, results from the justices’ pursuit of their policy
preferences within intra- and extra-Court constraints. Based on a duration analysis of cases decided
from the 1946 through 1995 terms, we show that ideological incongruence between a precedent and
a subsequent Court increases the chance of it being overruled. Two legal norms also exert
substantive effects, as the Court is less likely to overrule statutory precedents and more likely to
overrule precedents that have been previously interpreted negatively by the Court. While certain
precedent characteristics also influence this decision, the political environment exerts no such
effect. Consequently, one of the principal implications of this research is that legal norms influence
Supreme Court decision making.
Spriggs and Hansford, 1
“Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity
and propriety of doing so has been established. . . Nonetheless, we have held that ‘any departure
from the doctrine of stare decisis demands special justification’”
–Justice Kennedy’s majority opinion in Patterson v. McLean Credit Union
(1989, 172)
As Justice Kennedy’s opinion suggests, the doctrine of stare decisis, by which courts
follow the legal precedents articulated in previously decided cases, does not preclude the
Supreme Court from overruling a prior case. Yet, as Justice Kennedy also states in his opinion,
stare decisis
is “‘of fundamental importance to the rule of law’” (491 U.S. 164, at 172).
Adherence to precedent reportedly serves such goals as clarity, stability, and predictability in the
law (Douglas [1949] 1979; Powell 1990; Rasmusen 1994; Stevens 1983), efficiency (Landes and
Posner 1976; Stevens 1983), legitimacy (Knight and Epstein 1996; Powell 1990, 286-87; Stevens
1983, 2), and fairness and impartiality (Freed 1996; Padden 1994). Justices and scholars alike
argue that for these reasons the Court is loathe to overrule past cases. Between 1946 and 1992,
however, the Supreme Court overruled 154 of its prior decisions, for an average of about three
overruled decisions each term (Brenner and Spaeth 1995). In this paper, we ask a simple yet
important question: What explains why and when the Supreme Court chooses to overrule one of
its precedents?
The overruling of a precedent, despite its infrequency, is a significant political and legal
Spriggs and Hansford, 2
event, most notably because it represents a dramatic form of legal change. Supreme Court
opinions set up referents for behavior by providing actors with information necessary to
anticipate the consequences of their actions. Adherence to precedent, moreover, facilitates this
process by reducing uncertainty and thus allowing individuals to shape their behavior according
to stable legal rules. The overruling of a precedent therefore potentially influences social,
political, and economic relations as actors alter their behavior based on the new legal rule. For
example, Adarand Constructors v. Pena
(1995) held in part that courts must apply the strict
scrutiny test to analyze federal, as well as state or local, affirmative action programs. In doing so,
Adarand
overruled Fullilove v. Klutznick (1980) and Metro Broadcasting v. F.C.C. (1990), both
of which recommended greater deference to Congress through the use of intermediate scrutiny.
The overruling of these two cases possibly caused wide-ranging distributional consequences, as
litigants challenge various affirmative action programs and judges analyze them using the new
legal rule.
Given this importance, scholars have attempted to explain the overruling of precedent.
Prior studies, for instance, argue that the Court overrules precedent as a function of the
ideological leanings of the justices (Banks 1992; Brenner and Spaeth 1995; Ulmer 1959).
Research also suggests that a variety of legally-relevant factors, such as the legal basis of a
precedent (Banks 1992; Brenner and Spaeth 1995), the size of the majority coalition and the
presence of separate opinions (Banks 1992; Brenner and Spaeth 1995; Schmidhauser 1962;