Title: When precedent proves questionable: a structural analysis of overturning precedent on the US Supreme Court

Authors: Jonathan S. Hack

Addresses: The Jewish Theological Seminary of America, 3080 Broadway, New York, NY 10027, USA

Abstract: When looking to overturn precedent, US 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 facade of judicial interpretation while asserting new law? Through the analysis of overturning cases three factors: 1) dismissal; 2) invocation of precedent; 3) appeal to societal norms – emerge in order to successfully supplant old law, while maintaining institutional legitimacy.

Keywords: Stare Decisis; legal principles; judiciary; judges; judicial precedents; prior decisions; questionable precedents; structural analysis; new law; case adjudication; future rulings; justices; precedent deviation; established precedents; overturned cases; new views; case law; majority opinions; judicial interpretation; US Supreme Court; overruled precedents; judicial review; constitutional law; USA; United States; dismissal; societal norms; institutional legitimacy; law reports; Clarence Gideon; Louie Wainwright; John Lawrence; Tyron Garner; Texas; Citizens United; Federal Election Commission; FEC; public law; public policy.

DOI: 10.1504/IJPLAP.2012.045223

International Journal of Public Law and Policy, 2012 Vol.2 No.1, pp.66 - 82

Received: 08 May 2021
Accepted: 12 May 2021

Published online: 31 Jan 2012 *

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