The Supreme Court’s Mixed Record on Adhering to Precedent

It can sometimes seem that the Supreme Court is on a jurisprudential rampage that has left the legal landscape cluttered with the corpses of discarded precedents.

In just the past two terms, after all, it has done away with the constitutional right to abortion and race-conscious admissions in higher education. Judging by oral arguments this month, a foundational precedent on the power of executive agencies, Chevron v. Natural Resources Defense Council, is unlikely to survive its encounter with the justices unscathed.

But by standard political science measures, the court led by Chief Justice John G. Roberts Jr. since 2005 is not out of line with earlier courts in its treatment of precedent.

The famously liberal court led by Chief Justice Earl Warren from 1953 to 1969 overruled an average of 3.1 precedents per term. The number ticked up slightly as the court moved to the right under Chief Justice Warren E. Burger, who led the court from 1969 to 1986, to 3.4 precedents per term. It dropped under Chief Justice William H. Rehnquist, who led the court from 1986 to 2005, to 2.4 precedents per term.

Through the end of the term that ended in June, the Roberts court has overruled precedents at the lowest rate, at 1.6 per term. But it has picked up the pace since the arrival in 2017 of the first of three justices appointed by President Donald J. Trump. Since then, the rate has been 2.2 precedents per term, still the lowest of the four courts.

What distinguishes the Roberts court is ideology. In cases overruling precedents, the Warren court reached a liberal result 92 percent of the time. The Burger and Rehnquist courts reached liberal outcomes about half the time. The number dropped to 35 percent for the Roberts court. Since 2017, it has ticked down a bit, to 31 percent.