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Playing Well with Others - But Still Winning: Chief Justice Roberts, Precedent, and the Possibilities of a Multi-Member Court

18 Pages Posted: 12 Feb 2011  

William D. Araiza

Brooklyn Law School

Date Written: February 8, 2011

Abstract

This Essay, written for the Constitutional Law Roundtable at the 2010 meeting of the Southeastern Association of Law Schools, considers the methods by which a justice inclined to weaken precedent may do so without explicitly overruling cases. Adding to the literature of “stealth overruling,” it considers examples of these methods from the first five years of the Roberts Court. It does not speculate that the Roberts Court, or Chief Justice Roberts himself, is any more inclined than past Courts or justices to overrule (by stealth or otherwise). However, it does suggest that Chief Justice Roberts has employed several methods of implicitly weakening precedents short of explicitly overruling them. These examples suggest that Chief Justice Roberts does know how to engage in stealth overruling when he wants to, and how to make those moves consistent with a formal commitment to judicial humility.

Keywords: Chief Justice Roberts, precedent, stare decisis, overruling, Citizens United, judicial modesty

Suggested Citation

Araiza, William D., Playing Well with Others - But Still Winning: Chief Justice Roberts, Precedent, and the Possibilities of a Multi-Member Court (February 8, 2011). Brooklyn Law School Legal Studies Research Paper No. 220. Available at SSRN: https://ssrn.com/abstract=1758001 or http://dx.doi.org/10.2139/ssrn.1758001

William D. Araiza (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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