Vol. 6,No. 3 (March, 1996) pp. 40-44
STARE INDECISIS: THE ALTERATION OF PRECEDENT ON THE SUPREME
COURT, 1946-1992 by Saul Brenner and Harold J. Spaeth. Cambridge
University Press. 1995.
Reviewed by Donald R. Songer, Department of Government and
International Studies, University of South Carolina.
How the Supreme court reaches its decisions has been the focus of
scholarly interest for decades. Although political scientists in
the empirical tradition have focused on the influence of the
justices' attitudes and political preferences on their behavior,
a recent spate of articles and books has reflected a resurgence
of scholarly interest in the impact of precedent and legal
doctrine on Supreme Court justices' decisions.
STARE INDECISIS is the latest attempt to shed new light on this
controversy by examining the Court's decisions to overrule its
own precedents. As the authors put it, the most important part of
their study is an attempt to answer the question, "Why do
the justices in the overturning and overturned cases vote the way
they do ?" To answer this question, Brenner and Spaeth are
particularly concerned with assessing the relative contribution
to judicial decisions of the attitudinal model and one important
element of the legal model, adherence to stare decisis. The cases
examined in this study are an important, although the authors
recognize, not a representative sample of the Supreme Court's
decisions over a 46 year period. Specifically, the analysis seeks
to explain the voting behavior of the justices in all of the
cases from the Vinson, Warren, Burger, and the pre-1993 Rehnquist
Court in which the Court formally overturned precedent. While
these cases constitute a small fraction of the total workload of
the Court, they are arguably some of the most important cases
from the perspective of the impact of the Court on policy making.
The central thesis of the book is essentially the same as the
thesis of THE SUPREME COURT AND THE ATTITUDINAL MODEL:
"personal stare decisis" (which is to say the personal
policy preferences of the justices) rather than
"institutional stare decisis" or precedent is the most
important influence on the behavior of a large majority of the
justices in the cases examined in the book. Since the authors
recognize that the cases they examine are not typical of the
agenda of the Court they are careful not to generalize from their
findings to all decision making by the justices. However, they
suggest that the findings represent an important addition to what
they see as a growing body of evidence in support of the argument
that precedent exerts little restraint on the decisions of the
justices.
Brenner and Spaeth establish the importance of judicial attitudes
for their votes on cases that overturn precedent in a
straightforward and convincing manner. First, a Guttman scale
analysis of the justices votes in each of the four courts
examined demonstrates that over 97% of the votes were consistent
with the attitudinal model. Additionally, analysis of the
ideological direction of the decisions to overturn precedent is
consistent with the consensus on the ideological differences
among the courts studied. In particular, the precedents
overturned by the liberal Warren Court were overwhelmingly
conservative while
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precedents overturned by the Rehnquist Court were overwhelmingly
liberal.
More controversial is the Brenner and Spaeth analysis that leads
to their conclusion that the legal model has little significance
for the decisions to overturn precedent. To test the legal model,
the justices votes are divided into the four possible patterns:
1)A justice may vote with the majority in the overruled case and
dissent from the later decision overruling precedent.
2) A justice may dissent in the overruled case and vote with the
majority in the later decision overruling precedent.
3) A justice may vote with the majority in both the overruled
case and the later decision overruling precedent.
4) A justice may dissent in both the overruled case and the later
decision overruling precedent.
Brenner and Spaeth argue that the first scenario is consistent
with both the legal model and the attitudinal model, pattern #2
is consistent only with the attitudinal model, pattern #3 is not
consistent with either the legal or the attitudinal model, and
pattern #4 is consistent only with the legal model. Examining the
empirical occurrence of each of these patterns yields the
conclusion that "all four Courts manifested more support for
personal stare decisis than for the legal model" and
"This record hardly betokens attachment to the legal
model" (85). Most significant is their finding that only
2.7% of the votes fall into pattern #4 which is consistent with
support for precedent but inconsistent with the attitudinal
model. Most of the votes in support of precedent fall into
pattern #1 which the authors note can be explained equally well
by the attitudinal Model.
An attempt to assess the significance of these findings should
explore two questions. First, does this study adequately support
the conclusion that precedent is of little consequence for the
particular set of cases analyzed ? And second, what is the
significance of these findings for the larger question about the
overall impact of precedent on the Supreme Court ?
The answer to the first question depends on how one
conceptualizes the legal model. Most empirical tests of the
attitudinal model have implicitly (or sometimes explicitly)
contrasted the attitudinal model to a legal model based on
mechanical jurisprudence. As a corollary to this view, judges are
supposed to face a dichotomous choice between the clear mandates
of precedent and their attitudinal preferences. If one
understands the legal model in this way, then the argument of
STARE INDECISIS is compelling. The evidence presented by Brenner
and Spaeth clearly establishes that judicial attitudes have a
greater impact on decisions than a legal model so conceived. But
Stefanie Lindquist and I have argued elsewhere (e.g., see our
article in the forthcoming AJPS symposium) that the effects of
precedent are more subtle; that precedent may shape and constrain
judicial choice without necessarily providing a single clear
answer to every legal question. Given this conception of the
legal model it is reasonable to expect that in many cases the
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position adopted by a justice will reflect the influence of both
precedent and their personal attitudes. From this perspective,
the data presented by Brenner and Spaeth suggest that precedent
may have influenced (without being the sole determinant of) more
than 40% of the votes even in these cases to overrule precedent.
But the impact of precedent may be even greater. The least
satisfying aspect of the Brenner and Spaeth analysis is their
treatment of the votes of justices who voted with the majority in
the original precedent and then later voted with the majority
that overruled the precedent. The authors note briefly that such
cases appear to be inconsistent with both the legal model and the
attitudinal model. The fact that 28% of all the votes fall into
this category is used as a key part of the evidence against the
legal model. However, the implications of this finding for the
attitudinal model are not adequately explored and there is little
examination of the nature of the cases that fall into this
puzzling category. If the vote of a justice for the original
precedent reflected his or her policy preference, it is hard to
rationalize a later vote to overrule the precedent as consistent
with the attitudinal model (unless the ideology of the justice
changed in the intervening years). From a POLICY point of view,
the two positions are inconsistent even if the VOTES of the
justice scale in both cases. On the other hand (as both Lindquist
and Haire pointed out in the APSA round table on STARE
INDECISIS), it is possible that a justice in the original
majority would vote to overturn the precedent later for
jurisprudential reasons that are consistent with the legal model.
For example, if anomalies have arisen under the existing
precedent, such that contradictions have been created as either
the Supreme Court or the lower courts have attempted to apply the
law to new fact situations, the justices may feel it necessary to
eliminate the offending precedent in order to correct these
anomalies. Thus, some portion of the 28% of cases falling in
pattern #3 may also reflect some influence of the legal model.
Without a detailed analysis of the published opinions and the
comments of the judges during conference and opinion writing in
these majority-majority cases it is impossible to know how
frequently such jurisprudential concerns motivated these
seemingly paradoxical voting patterns. If a substantial
proportion of them do reflect such jurisprudential concerns, then
the legal model may actually have influenced a majority of the
votes in these cases in which precedent was overturned.
Second, what is the significance of these findings for the larger
question about the overall impact of precedent on the Supreme
Court ? Do these findings seriously undermine the validity of the
legal model as a general explanation of Supreme Court decision
making ? I think the answer is clearly no. First, one would
expect that decisions overruling precedent should provide the
clearest support of all cases for the attitudinal model. Given
this expectation, the finding that over 30% of even these cases
fall into Patterns # 3 and #4 that appear to be inconsistent with
the attitudinal model is not strong evidence that the attitudinal
model provides a sufficient general explanation of decision
making. Second, as Brenner and Spaeth admit, it is inappropriate
to generalize from such a small, unrepresentative proportion of
the Court's docket. More importantly, one of the most interesting
conclusions of STARE INDECISIS is that the
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justices are able to reach "striking" agreement about
what the precedent means and that the continued existence of the
precedent presents a roadblock to the resolution of the pending
case (and presumably other cases in the future) in the manner
they would prefer. Why should precedent present a roadblock if
precedent is completely malleable as the attitudinalists proclaim
? In contrast, a critical assumption of those that argue that
precedent constrains the justices is that it is possible in some
cases for the justices to reach inter-subjective agreement about
what precedent means within the context of a specific set of case
facts. In the cases studied in STARE INDECISIS the justices vote
to overturn the precedent after they agree on its meaning. But
the discovery of this agreement makes it plausible that the
justices are able to agree on the meaning of precedent for other
cases as well. If so, a critical question would be how often the
justices follow precedent once they have agreed on what it means.
This question is not addressed by Brenner and Spaeth except to
note that it is difficult to determine how often the justices may
have agreed on the meaning of precedent and decided not to
overturn it. This is a question that is worthy of future attempts
at systematic investigation so that the findings of STARE
INDECISIS can be seen in better perspective. On the surface,
however, two categories of decisions would appear to be examples
of cases in which the Court agreed on the meaning of precedent
and decided to support the precedent rather than overturn it: 1)
formally decided unanimous decisions in which the Court reversed
or vacated the decision below, and 2) summary decisions in which
the decision below is reversed or vacated "in light of"
an explicitly identified precedent. These cases would appear to
occupy the opposite extreme from the cases analyzed in STARE
INDECISIS in terms of support for the legal model versus the
attitudinal model. Significantly, however, there appear to be
many more cases in these latter categories than in the category
of cases formally overturning precedent. The remainder of the
docket of the Court may be composed of cases in which it is
precisely the meaning of precedent that is fundamentally at
issue. For these cases, neither the findings of STARE INDECISIS
nor predictions based on a model of mechanical jurisprudence are
particularly relevant . For these "in-between" cases
that probably compose a significant majority of all formally
decided cases, further research is needed to explore the
possibility that outcomes are shaped by both precedent and
attitudes while being determined by neither.
While the central theoretical argument of STARE INDECISIS centers
on the superiority of the attitudinal model to the legal model as
an explanation of Supreme Court decision making, even students of
the Court who are unpersuaded by the authors' thesis will find
many reasons to add this book to their personal libraries. First,
it is a delight to read. The writing is lucid, lively, and few
words are wasted conveying a lot of interesting information. Even
the 30 pages of appendices are worth examining. In addition, this
short work will be an indispensable aid to any other scholars who
do subsequent work on Supreme Court decisions that overturn
precedent. In fact, it should be the first work read. The chapter
on previous empirical research is so well done that future
scholars may be tempted to skip going back to the original
sources after reading the eight pages
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in which Brenner and Spaeth tie it all together. Moreover, the
identification and explication of the cases in which precedent
was overruled will prove to be a valuable resource for
innumerable projects. As the authors demonstrate through a
thorough and careful analysis, the questions of how and what to
count as an instance of precedent overruled is not as simple as
it may seem on the surface, and several earlier studies suffer
from reliance on an inadequate identification of the relevant
cases. The method employed by Brenner and Spaeth convincingly
overcomes the shortcomings of prior studies and results in the
production of a list of cases for analysis that will be accepted
as the standard for future analyses.
STARE INDECISIS also follows in the tradition of earlier works by
Segal and Spaeth and Rohde and Spaeth by including a set of
introductory chapters that provide a wealth of useful descriptive
material. Anyone who wants to know when, how often, and how the
Court overruled precedent or what types of precedent were
reversed after how many years and by which margins will find a
wealth of material that is not readily available from other
convenient sources. Of particular interest is the chapter on the
conference votes of the justices. While a number of analyses of
conference voting have been produced from recent examinations of
the papers of the justices (including a number of notable earlier
works by Brenner himself), I believe that this is the first time
that a thorough analysis of conference votes has been so well
integrated into an empirical study of the final votes on the
merits. Adequate empirical description is an essential
precondition for scientific analysis and advances in theory, and
those on all sides of the theoretical controversies addressed by
this book will benefit from the thorough and systematic
description of Court decision making presented.
References:
Songer, Donald R. And Stefanie A. Lindquist. Forthcoming.
"Not the Whole Story: The Impact of Justices' Values on
Supreme Court Decision Making." AMERICAN JOURNAL OF
POLITICAL SCIENCE.
Copyright 1996