The Influence of Stare Decisis on the Votes of United States Supreme Court Justices

TLDR

The study tests whether Supreme Court justices follow stare decisis even when they disagree, arguing that dissenting justices may not support landmark precedents. The authors performed a systematic content analysis of dissenting justices’ votes and opinions in a random sample of landmark decisions and their progeny. The analysis shows that Supreme Court justices are overwhelmingly not influenced by landmark precedents they disagree with, with only Potter Stewart and Lewis Powell exhibiting any systematic support for stare decisis.

Abstract

Theory: We test arguments from the legal model claiming that United States Supreme Court justices will follow previously established legal rules even when they disagree with them; i.e., that they are influenced by stare decisis. Hypothesis: Because of the institutional features facing Supreme Court justices, we argue that justices who dissent from or otherwise disagree with Supreme Court precedents established in landmark cases are free not to support those decisions in subsequent cases. Methods: A systematic content analysis of the votes and opinions of dissenting Supreme Court justices in a random sample of landmark decisions and their progeny. Results: Overwhelmingly, Supreme Court justices are not influenced by landmark precedents with which they disagree. We replicate the research for nonlandmark decisions and find similar results. Alone among the justices studied, only Potter Stewart and Lewis Powell show any systematic support for stare decisis at all.