When Precedent Proves Questionable: A Systematic Analysis of the Overturning of Precedent on the Supreme Court of the United States

Jonathan S. Hack, The Jewish Theological Seminary of America

Abstract

When looking to overturn precedent, United States Supreme Court Justices are faced with a challenge, how to maintaining the guise that they have not crafted new law. The principle of stare decisis dictates that when adjudicating cases, precedent should influence and direct future rulings. For countless reasons, the Justices do deviate from precedent, intermittently expunging established precedent by overturning cases, and substituting the old with a new view of the law. How then do majority opinions simultaneously maintain the façade of judicial interpretation while asserting new law? Through the analysis of overturning cases three factors – (1) dismissal, (2) invocation of precedent, and (3) appeal to societal norms – emerge in order to successfully supplant old law, while maintaining institutional legitimacy.