Ideology and Partisanship on the Roberts Court: Why Constitutional Precedent Loses

Abstract

Adherence to precedent is a central legal principle in American law. Precedent is meant to promote fairness, economy, uniformity, consistency, and support reliance interests. Precedent is also supposed to restrain judicial discretion. All courts, including the US Supreme Court are expected to follow precedent, with departures from it the exception and not the rule. This Article examines the role of constitutional precedent on the Roberts Court. It indicates that among the sixteen cases where the Roberts Court has overturned constitutional precedent Republican-appointed Justices and those who are identified as more ideologically conservative are statistically far more likely to reject such precedent than those who are appointed by Democratic presidents or who are identified as more ideologically liberal. This pattern raises serious questions regarding the role of ideology when it comes to adherence to precedent and it also suggests that interpretive strategies such as originalism and textualism may conflict with this judicial principle.

Keywords: Constitutional Precedent, Roberts Court, Originalism, Textualism, Ideology