Under Chief Justice Earl Warren (1953-69), the rate of “precedent alteration” averaged 3.1 cases per year. Then came Chief Justice Warren Burger (1969-86), with 3.4 a year. Things slowed down after Ronald Reagan’s elevation of Chief Justice William Rehnquist (1986-2005), with the figure falling to 2.4. How does current management compare? Under Chief Justice John Roberts (2005-present), the High Court has altered 1.6 precedents a year, through the term that ended in 2024.
In seven of his 19 years, the database shows the Roberts Court upending a single precedent, and none at all in four of those terms. Also, not every reversal is a heated national dispute with a hard ideological split. In a 2019 ruling on tribal hunting rights, Herrera v. Wyoming, Justice Neil Gorsuch joined four liberals to repudiate an 1896 precedent.
The current Court has overturned some major precedents, including with the Dobbs ruling in 2022 that ended the constitutional abortion right declared by Roe v. Wade. Yet this hardly fits Justice Sotomayor’s thesis of acting “too quickly.” Roe was decided in 1973, and was one of the most controversial decisions in Supreme Court history, including when the High Court upheld it while rewriting it in Planned Parenthood v. Casey (1992). What would moving “more slowly” mean, with a precedent debated for almost 50 years?
Perhaps there are ways to quibble with the numbers in this database, but law professor Jonathan Adler has written that the Library of Congress’s precedent tracker provides the same conclusion. It’s no secret. “Evidence tends to refute the notion that the Roberts Court has been any more inclined than prior Courts to overrule precedent,” says a 2023 note in the Harvard Law Review.
https://www.wsj.com/opinion/sonia-sotomayors-elegy-for-precedent-law-supreme-court-history-40f84ffc?mod=hp_opin_pos_0
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