Supreme Court, Stare Decisis, and the Abandonment of Precedent

Summary

This research compilation examines the Roberts Court's unprecedented campaign to overturn major constitutional precedents, analyzing whether stare decisis—the principle that courts should follow prior decisions—still functions as a meaningful constraint on judicial power.

The Core Problem

Since 2018, the Court has formally or effectively overruled major precedents spanning roughly 200 years of combined legal stability, including:

Dobbs v. Jackson (2022): Overturned Roe v. Wade (49 years) and Casey
Loper Bright v. Raimondo (2024): Overturned Chevron deference (40 years, cited in 17,000+ decisions)
Kennedy v. Bremerton (2022): Abandoned the Lemon test (51 years)
Students for Fair Admissions (2023): Effectively ended Grutter and affirmative action precedents (45 years)
Janus v. AFSCME (2018): Overturned Abood on union fees (41 years)

Key Findings

Stare decisis now operates as a one-way ratchet: constraining liberal majorities while providing no meaningful limit on conservative ones
"Egregiously wrong" has become sufficient justification: The Court elevates subjective disagreement with prior reasoning over reliance interests, workability, or changed circumstances
Reliance interests have been narrowed: Dobbs dismissed "intangible" reliance (organizing reproductive life) in favor of only "concrete" property/contract interests
History and tradition tests are applied selectively: Critics document inconsistent use of historical evidence between Dobbs (restrictive) and Bruen (expansive for gun rights)
The shadow docket enables "stealth" precedent erosion: Emergency orders increasingly make consequential rulings without full briefing or explained reasoning

Legitimacy Crisis

Public confidence has collapsed to historic lows (18% expressing "great deal" of confidence—lowest in 50-year survey history). The partisan gap has widened to 64 points. Justices are openly feuding about whether the institution retains legitimacy.

Central Question

If Roe wasn't safe after 50 years, what precedent is? Justice Thomas's Dobbs concurrence explicitly called for reconsidering Griswold (contraception), Lawrence (same-sex intimacy), and Obergefell (same-sex marriage)—suggesting no substantive due process right is secure.

Research Sources

This document compiles analysis from Claude, Gemini, and ChatGPT, synthesizing Supreme Court opinions, legal scholarship, and comparative analysis of precedent doctrine in the UK, Canada, and Australia.

Claude

The Supreme Court's abandonment of stare decisis threatens the rule of law itself

The Roberts Court has embarked on the most aggressive precedent-overturning campaign in modern American history, dismantling 40 to 50-year-old constitutional foundations in abortion rights, administrative law, affirmative action, church-state separation, and union protections—all while insisting it remains committed to the rule of law. Since 2018, the Court has formally or effectively overruled major precedents spanning roughly 200 years of combined legal stability, and the pattern reveals a troubling truth: stare decisis appears to operate as a one-way ratchet, constraining liberal majorities while providing no meaningful limit on conservative ones. Public confidence has cratered to fifty-year lows, and the Court's own members are openly feuding about whether the institution retains legitimacy. What was once the anchor of American common law—the principle that like cases should be decided alike—now seems to mean only that precedent survives until five justices decide otherwise.

What stare decisis means and why it has always mattered

Stare decisis, from the Latin phrase meaning "stand by things decided and do not disturb the calm," has served as the foundational principle of Anglo-American common law since the eighteenth century. William Blackstone described it as establishing a "permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments." The doctrine operates on two levels: vertical stare decisis requires lower courts to follow higher court decisions, while horizontal stare decisis means courts should follow their own prior rulings absent exceptional circumstances.

The doctrine serves four essential functions that make constitutional governance possible. Predictability allows individuals and businesses to structure contracts, property rights, and life decisions with confidence that similar cases will be decided similarly. Stability ensures the law doesn't shift with every new appointment, preserving continuity that manifests respect for the past. Legitimacy makes judicial decisions appear principled rather than political—as the plurality in Planned Parenthood v. Casey warned, "The legitimacy of the Court would fade with the frequency of its vacillation." Finally, equal treatment ensures outcomes don't depend on which judge happens to hear a case or when it is filed.

Traditionally, courts weigh specific factors before overturning precedent: whether the rule has proven practically workable, whether people have built reliance interests around it, whether it remains doctrinally coherent with related principles, whether underlying facts or law have changed, and whether the original reasoning was sound. The Court has long maintained that overruling requires "special justification" or "strong grounds" beyond mere disagreement with the prior decision. From 1810 through 2020, the Supreme Court overruled precedent in constitutional cases approximately 145 times—barely 0.5% of its 25,544 opinions.

The landmark cases where the Court previously overturned precedent illustrate how exceptional such moments were. Brown v. Board of Education (1954) overruled Plessy v. Ferguson after 58 years based on transformed understanding of segregation's harm, supported by modern psychological research. West Coast Hotel Co. v. Parrish (1937) overruled Lochner-era economic due process after the Great Depression demonstrated the necessity of worker protections. Lawrence v. Texas (2003) overruled Bowers v. Hardwick after just 17 years, finding its historical analysis flawed and its reasoning contradicted by subsequent decisions. In each case, the Court identified either changed factual circumstances, demonstrable error in the original analysis, or erosion by subsequent doctrinal developments—not merely new personnel on the bench.

Dobbs shattered half a century of precedent while claiming to honor the rule of law

On June 24, 2022, the Supreme Court decided Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) by a 5-4 margin. Justice Samuel Alito's majority opinion declared that "the Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives." The decision eliminated a constitutional right that had been reaffirmed, applied, and built upon for 49 years.

The majority justified this extraordinary step by characterizing Roe as "egregiously wrong from the start" and comparing it to Plessy v. Ferguson. Alito applied the Glucksberg test for unenumerated rights, requiring that any such right be "deeply rooted in this Nation's history and tradition." Finding no historical tradition supporting abortion rights—indeed, noting that three-quarters of states criminalized abortion when the Fourteenth Amendment was ratified—the majority concluded the right had "no basis" in constitutional text, history, or precedent.

The stare decisis analysis employed five factors: the nature of the Court's error, the quality of reasoning, workability, effects on other legal doctrines, and reliance interests. On each factor, the majority found reasons to overrule. The treatment of reliance interests proved most controversial: the majority dismissed the argument that millions of women had organized their reproductive, economic, and professional lives around abortion access as merely "generalized assertions about the national psyche." It distinguished between "concrete" reliance (like commercial interests based on property or contract rules) that merits protection and "intangible" reliance (like organizing one's reproductive life) that does not.

This approach starkly contradicts Casey, which had explicitly recognized that "the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." The Harvard Law Review subsequently observed that Dobbs "overruled not only the substantive holding of Casey but also its approach to stare decisis," abandoning Casey as "a precedent about precedent."

Chief Justice Roberts concurred only in upholding Mississippi's 15-week ban, refusing to join the majority in overturning Roe entirely. He advocated discarding only the viability line while preserving a "reasonable opportunity" to obtain an abortion—a middle path he argued judicial minimalism required. Roberts warned that "the Court's decision to overrule Roe and Casey is a serious jolt to the legal system" and criticized the majority for "ripping out walls all the way down to the studs" when something narrower would suffice.

The joint dissent by Justices Breyer, Sotomayor, and Kagan—a rare jointly authored opinion signifying its gravity—charged that the Court "reverses course today for one reason and one reason only: because the composition of this Court has changed." The dissent noted that nothing in law or fact had shifted since Casey; the only change was personnel. In perhaps its most memorable passage, the dissent observed that the majority "consigns women to second-class citizenship" by requiring the Fourteenth Amendment to be read as ratifiers understood it—men who were "not perfectly attuned to the importance of reproductive rights for women's liberty." The opinion notably omitted the customary "respectfully" from its conclusion: "With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent."

A systematic campaign to overturn decades of settled law

Dobbs was not an isolated event but part of a sustained pattern of precedent destruction unprecedented in modern Supreme Court history. Between 2018 and 2024, the Court formally or effectively overruled major constitutional decisions spanning abortion, union rights, church-state separation, affirmative action, and administrative law.

Janus v. AFSCME (2018) overturned 41 years of labor law by reversing Abood v. Detroit Board of Education, which had permitted public-sector unions to collect agency fees from non-members for collective bargaining costs. Justice Alito's majority found Abood "poorly reasoned" and its distinction between chargeable and nonchargeable expenses "unworkable." Justice Kagan's dissent declared: "Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis." She emphasized that over 20 states had statutory schemes built on Abood, affecting "thousands of ongoing contracts involving millions of employees."

Kennedy v. Bremerton School District (2022) effectively overruled Lemon v. Kurtzman (1971), the 51-year-old framework for Establishment Clause analysis. Justice Gorsuch's majority declared the Court had "long ago abandoned Lemon" in favor of analyzing religious liberty claims through "historical practices and understandings." While the majority avoided the word "overruled," Justice Sotomayor's dissent noted it "overrule[d] Lemon entirely and in all contexts," calling into question "decades of subsequent precedents."

Students for Fair Admissions v. Harvard (2023) effectively buried Grutter v. Bollinger (2003) and the Bakke line of affirmative action precedents spanning 45 years. Chief Justice Roberts's majority formally claimed to apply Grutter while finding that race-conscious admissions lacked "sufficiently focused and measurable objectives." Justice Thomas's concurrence stated plainly that "Grutter is, for all intents and purposes, overruled." Justice Sotomayor's dissent observed: "The Court does not even attempt to make the extraordinary showing required by stare decisis. The Court simply moves the goalposts."

Loper Bright Enterprises v. Raimondo (2024) delivered the most sweeping blow, overturning Chevron v. NRDC (1984)—40 years of administrative law doctrine that had been cited in over 17,000 federal court decisions. Chief Justice Roberts declared Chevron "fundamentally misguided" because it conflicted with the Administrative Procedure Act's requirement that courts "decide all relevant questions of law." Justice Kagan's dissent argued the decision "makes a laughing-stock of stare decisis."

The pattern reveals common rhetorical moves. In every case, the majority characterized the overruled precedent as fundamentally flawed from inception. In every case, it emphasized that stare decisis is "at its weakest" in constitutional interpretation. In every case, it found reliance interests—even massive ones involving millions of people and thousands of statutes—insufficient to preserve "egregiously wrong" rulings. And in every case, the only thing that had actually changed was the Court's composition.

If Roe wasn't safe after fifty years, nothing is

The concept of "super-precedent"—cases so deeply embedded in American law and life that no serious actor calls for their overruling—emerged in legal scholarship and entered public discourse during John Roberts's 2005 confirmation hearing. Senator Arlen Specter asked whether Roe had achieved "super stare decisis," and Roberts demurred while calling it "settled as a precedent of the Court."

Constitutional scholar Michael Gerhardt defined super-precedents as "those constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time." Brown v. Board of Education and Marbury v. Madison exemplify the category: virtually no serious political or legal actors call for their overruling. But if the test is continued political contestation, Roe never qualified—people continued pushing for its reversal. As Justice Barrett observed at her confirmation hearing, "descriptively it does mean that it's not a case that everyone has accepted."

The confirmation hearing statements of justices who later voted to overturn Roe have generated fierce controversy. Justice Kavanaugh called Roe "settled as a precedent of the Supreme Court" and emphasized that Casey was "precedent on precedent"—making it doubly established. Justice Gorsuch described precedent as "the anchor of law" and "the starting place for a judge." Justice Barrett declined to "grade precedent" but stated she had "no agenda to try to overrule Casey." None explicitly promised to preserve Roe, and legal experts note they maintained "escape hatches" through qualifying language. But Senators Susan Collins and Joe Manchin publicly stated they felt misled about the justices' commitment to precedent.

The aftermath raises an unsettling question: if a right recognized for 50 years, reaffirmed multiple times, and integrated into the lives of millions of women could be eliminated because five justices deemed it "egregiously wrong from the start," what precedent is ever truly safe? Justice Thomas's Dobbs concurrence answered: none that he disagrees with. Thomas explicitly called for reconsidering "all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell"—contraception, same-sex intimacy, and same-sex marriage. Notably absent from his list: Loving v. Virginia on interracial marriage, despite its identical doctrinal foundation. Justice Kavanaugh's concurrence insisted Dobbs would not affect other precedents, but the dissent was skeptical: "The future significance of today's opinion will be decided in the future. Scout's honor."

Originalism appears to mean whatever five justices want it to mean

The Roberts Court majority professes commitment to originalism—interpreting the Constitution according to its meaning when ratified—but scholarly analysis reveals that methodology is applied selectively and inconsistently. Professor Richard Fallon's comprehensive study found that in the 2021 term, only 5 of 22 constitutional cases had majority opinions using originalist methodology. The avowedly originalist justices frequently rely on precedent without examining whether those precedents are defensible on originalist grounds.

The contrast between Dobbs and New York State Rifle & Pistol Association v. Bruen (2022), both decided within days of each other and both invoking "history and tradition," reveals the methodology's malleability. In Dobbs, Justice Alito applied a narrow historical inquiry, finding no tradition supporting abortion rights and treating territorial abortion restrictions as significant evidence. In Bruen, Justice Thomas applied a broader historical-analogical approach to gun rights, dismissing territorial gun regulations because of low population density—the same characteristic of territories whose abortion restrictions Dobbs credited.

The Columbia Law Review documented how the Court "struck past laws and practices out of this nation's historical tradition by applying a shadow strict scrutiny review" in Bruen while "incorporat[ing] past laws and practices into the historical tradition by applying a shadow rational basis review" in Dobbs. In Bruen, Justice Thomas excluded racially discriminatory gun laws from the historical tradition because they were unconstitutional. In Dobbs, Justice Alito incorporated abortion restrictions despite historians' arguments that they were motivated by "invidious sex-role stereotyping." As Justice Sotomayor observed: "History matters to this Court only when it is convenient."

The Major Questions Doctrine represents another mechanism for reaching preferred outcomes. Articulated explicitly in West Virginia v. EPA (2022), the doctrine holds that agencies must have "clear congressional authorization" before making decisions of "vast economic and political significance." Critics argue it operates as "a judicial power grab"—the criteria for what constitutes a "major question" are undefined, allowing courts to second-guess any regulation they disfavor. Professor Cary Coglianese observes that "without answers on what constitutes a 'major question,'... the Court's continued invocation of the major questions doctrine cannot help but continue to appear to many observers as essentially a judicial power grab."

The scholarly consensus on methodological consistency is damning. Even leading originalist scholars Randy Barnett and Lawrence Solum answered "largely in the negative" when asked whether Bruen's use of history and tradition can be reconciled with originalism. Professor Eric Segall states bluntly: "Today originalism is a label used by scholars and judges to justify conservative or libertarian ideals... all Supreme Court Justices, whether left, left-center, center, right-center or right, decide cases the same way—based on their values."

Public confidence has collapsed and justices are feuding openly about it

The Supreme Court's approval rating has cratered to historic lows. Before the Court allowed Texas's restrictive abortion law to take effect in September 2021, Gallup measured approval at 49%. After that shadow docket ruling, it plunged to 40%—a record low. Following Dobbs, the General Social Survey found only 18% of Americans had "great deal" of confidence in the Court, the lowest point in the survey's 50-year history. The partisan gap has widened to an unprecedented 64 points: 75% of Republicans approve while only 11% of Democrats do.

The justices themselves have publicly clashed over legitimacy concerns. Justice Kagan has repeatedly warned that "if, over time, the court loses all connection with the public and public sentiment, that's a dangerous thing for democracy." She has stated that judges "create legitimacy problems for themselves... when they stray into places where it looks like they're an extension of the political process." When a new justice arrives and "all of a sudden everything is up for grabs," Kagan argues, "people have a right to say... that just seems as though people with one set of policy views are replacing another."

Justice Alito has responded defiantly. In a July 2023 Wall Street Journal interview, he declared: "I marvel at all the nonsense that has been written about me in the last year." He controversially compared critics of the current Court to segregationists who defied Brown v. Board of Education, stating: "If we're viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular." Most provocatively, Alito claimed: "Congress did not create the Supreme Court... No provision in the Constitution gives them the authority to regulate the Supreme Court—period"—a position legal scholars call "belied by 234 years of practice."

The historical parallel most often invoked is FDR's court-packing threat of 1937, when the Court's obstruction of New Deal legislation prompted the president to propose adding up to six new justices. Public opinion opposed the plan, and it failed spectacularly. But Justice Owen Roberts's "switch in time that saved nine"—changing his vote to uphold minimum wage laws—suggested the threat itself prompted doctrinal change. The Court's legitimacy survived, but only because it accommodated overwhelming political consensus. Today's circumstances differ: the Court is accelerating in a direction opposed by majority opinion on specific issues like abortion, without the unified political opposition that constrained FDR-era justices.

The shadow docket has become a mechanism for making law without explanation

Beyond merits decisions, the Court has transformed its emergency docket into a tool for consequential policymaking without the transparency that legitimacy requires. Law professor William Baude coined the term "shadow docket" in 2015 to describe orders issued without full briefing, oral argument, or explained reasoning. Historically, the Court used this sparingly for genuine emergencies. Under the Roberts Court, it has metastasized.

The statistics are stark. During the Bush and Obama administrations combined (16 years), the Justice Department filed only 8 emergency applications. During Trump's first term alone (4 years), DOJ filed 41 applications, with 28 granted—more than 20 times the historical rate. By early 2025, the Trump administration had filed 19 applications in just 20 weeks, matching Biden's entire four-year total.

The Texas abortion law SB8 exemplifies how procedural manipulation can nullify constitutional rights. The law banned abortions after approximately six weeks but was deliberately structured to evade judicial review: no state officials enforce it, only private citizens who can sue providers for $10,000 or more. This eliminated the traditional defendant for pre-enforcement constitutional challenges. When providers sought emergency relief from the Supreme Court, the majority issued a one-paragraph unsigned order at 11:58 PM on September 1, 2021, allowing the law to take effect while citing "complex and novel antecedent procedural questions" it refused to resolve.

Justice Sotomayor's dissent was devastating: "Without full briefing or argument, and after less than 72 hours' thought, this Court greenlights the operation of Texas's patently unconstitutional law... The Court thus rewards Texas's scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State's behalf." Professor Steve Vladeck documented the inconsistency: just months earlier, the same 5-4 majority had issued emergency injunctions protecting religious liberty rights while ignoring procedural obstacles. In the abortion context, it invoked open procedural questions as reasons not to act.

Justice Jackson has characterized the Court's emergency docket approach as "Calvinball"—the game from Calvin and Hobbes whose only rule is that there are no fixed rules. In a 2025 dissent, she wrote: "We seem to have two [rules]: that one, and this Administration always wins." The scholarly consensus, shared by Professor Erwin Chemerinsky, is that "significant rulings without explanation" amount to "'Because I said so'"—which "should not be regarded as acceptable when it is the [Supreme Court]."

Legal scholars across the spectrum see a doctrine in crisis

The academic literature on stare decisis has exploded since 2022, with leading scholars documenting what many call an unprecedented breakdown. Dean Erwin Chemerinsky of UC Berkeley has written extensively that "precedent seems to matter little in the Roberts Court," documenting how cases like Janus, Dobbs, and Loper Bright dismissed long-standing precedents "with barely a reason given." Harvard's Laurence Tribe describes the Court as "reactionary" and "highly activist," noting it is "ignoring its own precedents even those that I think are very well-grounded."

Nina Varsava's Harvard Law Review article "Precedent, Reliance, and Dobbs" provides the most comprehensive scholarly critique of the Court's reliance analysis. She demonstrates that Dobbs dramatically narrowed which reliance interests count—accepting only "concrete" interests like property and contracts while dismissing "intangible" interests like structuring one's reproductive life. This represents "a notable shift in the Court's stare decisis jurisprudence" that effectively "overrule[d] Casey as a precedent about precedent."

Defenders of the Court's approach exist but make notably limited claims. Professor Jonathan Adler argues the Court is "overturning precedent and striking down legislation at a significantly slower rate than its post-war predecessors"—a quantitative claim that doesn't address the qualitative weight of what's being overturned. John Yoo and Robert Delahunty argue in National Affairs that "if the Court majority believes that the original understanding of the Constitution conflicts with precedent, the confines of the judicial role require it to enforce the former and discard—however gently—the latter."

The deeper problem is that no coherent theory of stare decisis commands consensus. As an Oklahoma Law Review article observed, "no one has been able to provide a satisfactory test, standard, or framework around which judges can coalesce." The same factors—poor reasoning, reliance interests, antiquity, workability—can be weighted to support either following or overruling any precedent. The "grievously wrong" standard that justices invoke provides no definition of what qualifies; critics note it creates circular reasoning where decisions justices disagree with are deemed grievously wrong.

Professor Randy Kozel of Notre Dame has attempted to develop a theory of precedent that would separate overruling decisions from deeper interpretive disagreements, promoting "stability and impersonality of constitutional law." But his own analysis acknowledges the central problem: "conclusions about the durability of precedent will track individual views about whether decisions are right or wrong." Stare decisis doctrine, as currently formulated, cannot constrain justices who view prior decisions as fundamentally mistaken.

Other democracies show what genuine respect for precedent looks like

Comparing the U.S. Supreme Court to peer institutions reveals how exceptional its current approach has become. The UK Supreme Court operates under the 1966 Practice Statement, which permits departure from prior decisions "when it appears right to do so" but directs using this power "sparingly." Between 1966 and 2009, the Practice Statement was explicitly invoked in only approximately 21 cases—demonstrating its cautious application. The Canadian Supreme Court, which declared in 1901 that it was not bound by its own decisions, has overruled itself over 500 times but has done so consistently in the direction of expanding rights—assisted dying, the right to strike, and similar progressive developments.

Historical periods of rapid American precedent-overturning provide instructive context. The New Deal constitutional revolution (1937-1942) saw the Court abandon Lochner-era economic due process after Justice Roberts's famous switch. The Warren Court (1953-1969) overturned segregation, incorporated the Bill of Rights against states, and created new criminal procedure protections. Both periods achieved stability through personnel changes (by 1942, Roosevelt had appointed 8 new justices), clear doctrinal frameworks, time for institutional adaptation, and subsequent Courts treating new rules as settled rather than continuing to relitigate them.

The Warren Court comparison is particularly illuminating. Scholars note that the Roberts Court has "altered or overturned just four precedents from the Warren Court" while systematically dismantling Burger Court precedents like Roe, Chevron, and affirmative action. The reason may be that Warren Court decisions now "belong to the distant past" and have achieved cultural acceptance—Miranda warnings are "part of our national culture." But a crucial difference separates the periods: the Warren Court expanded rights for marginalized groups excluded from political power, while the Roberts Court is contracting them. As the Dobbs dissent noted, this marks "the first time in American history that the court has withdrawn from Americans a fundamental personal freedom."

Whether the direction of change matters for legitimacy remains contested. Originalists argue that correcting constitutional error is required regardless of whether it expands or contracts rights. But scholars like Geoffrey Stone and David Strauss contend the Court's function is "to intervene when American democracy was not truly democratic"—protecting groups effectively excluded from political power. If the Court exists to serve as a counter-majoritarian check on behalf of the vulnerable, then a Court that removes their protections at majority behest has abandoned its central purpose.

The profession that defines law may no longer agree it exists

The Supreme Court does not operate in isolation from the broader legal ecosystem, and that ecosystem shows troubling signs of the same polarization afflicting other American institutions. The Federalist Society, founded in 1982 by conservative law students who felt "ostracized" on their campuses, has grown into the dominant gatekeeper for conservative judicial appointments. Six of the nine current Supreme Court justices are current or former Federalist Society members or affiliates: Thomas, Alito, Roberts (former), Gorsuch, Kavanaugh, and Barrett. During the Trump administration, 80% of appellate court appointments were Federalist Society affiliated.

The organization officially claims it "does not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service." It includes liberal speakers at events and promotes debate. But its practical influence on judicial selection is documented and undeniable. Trump stated in 2016 that judicial nominees would be "all picked by the Federalist Society." When Harriet Miers was nominated to the Supreme Court without Federalist Society credentials, conservative outcry led to her withdrawal; Samuel Alito, a member with a "consistent conservative track record," replaced her.

The ethics controversies engulfing several justices raise questions about whether lifetime tenure insulates them from accountability or enables capture by ideological networks. ProPublica documented that Justice Thomas accepted luxury trips from Dallas billionaire Harlan Crow "virtually every year" for over two decades without disclosure—international cruises on Crow's superyacht, flights on his private jet, vacations at his Adirondacks resort. The 2019 Indonesia trip alone could have exceeded $500,000 in value. Crow purchased Thomas's mother's house and paid roughly $100,000 in private school tuition for a relative Thomas was raising. Every ethics expert consulted said Thomas was required by law to disclose these gifts.

Justice Alito accepted a private jet flight to an Alaska fishing trip from hedge fund billionaire Paul Singer, who had business before the Court. The trip was organized by Leonard Leo, the Federalist Society's former executive vice president. Alito has repeatedly used the Wall Street Journal editorial page to defend himself, including publishing a "pre-buttal" responding to ProPublica questions before their story appeared. The flag controversies—an inverted American flag at his home days after January 6, an "Appeal to Heaven" flag associated with Christian nationalism at his beach house—and his refusal to recuse from related cases, suggest a justice either unaware of or indifferent to appearances of impropriety.

The broader legal profession shows similar polarization. Harvard research found that "the higher the court, the more conservative and more polarized it becomes." While 68% of lawyers who make political contributions give more to Democrats, the judiciary has been reshaped through ideological vetting. Professor Deborah Pearlstein documents that "the behavior of judges on both the U.S. Supreme Court, and on federal and state courts throughout the United States, has changed dramatically in the past decade—polarizing along party lines in ways not visible in decades past." The conservative legal movement has "functioned to challenge long-settled norms of legality... including norms of judicial stability and impartiality."

State attorneys general have become partisan warriors rather than neutral enforcers. Texas Attorney General Ken Paxton filed 100 lawsuits against the Biden administration—compared to 48 against Obama over eight years. The first came two days into Biden's presidency. Meanwhile, DOJ lawyers in the current administration have advanced unitary executive theories that scholars describe as "just a fancy word for 'authoritarian' or 'despot.'" When enough lawyers argue any position, it becomes "a reasonable legal position" regardless of how radical it actually is. The profession that should define and defend the rule of law cannot agree that law exists as a constraint on power.

The limiting principle problem may have no answer

The synthesis questions posed by this research lead to unsettling conclusions. Is there a principled distinction between "correcting errors" and "imposing preferred policy"? In theory, yes—errors involve demonstrably flawed reasoning, while policy preferences are matters of normative disagreement. In practice, no—because what counts as "egregiously wrong" is determined by the same justices whose policy preferences would be advanced by overruling. The stare decisis factors are sufficiently manipulable that any conclusion can be rationalized.

Has the Court adopted a de facto rule that precedent binds until there are five votes to overturn it? The Dobbs dissent stated this explicitly: the decision exists "for one reason and one reason only: because the composition of this Court has changed." Nothing in law or fact shifted between Casey's reaffirmation in 1992 and Dobbs's reversal in 2022 except the identity of the justices. If that is sufficient to overturn 49 years of precedent, stare decisis provides no meaningful constraint—only a delay until the composition changes.

What is the limiting principle—if the current Court can overturn Roe, Chevron, and affirmative action, what can't a future Court overturn? Justice Thomas provided the honest answer: nothing based on substantive due process, which would include contraception, same-sex intimacy, and same-sex marriage. The majority's assurances that Dobbs would not affect other precedents ring hollow given the pattern. As Professor Jane Schacter observed: "The shelf life of those assurances may not be long... In the longer term, I would say all bets are off."

Does selective stare decisis undermine the rule of law itself? If stare decisis operates as a one-way ratchet—constraining liberal majorities from overturning conservative precedents while providing no limit on conservative majorities—it ceases to serve its function of making law predictable, stable, and legitimate. If citizens cannot rely on constitutional rights surviving a change in Court composition, they cannot plan their lives around those rights. If the law means only what five justices say it means, and can change whenever personnel change, there is no law separate from politics.

What reforms might restore institutional legitimacy? The most commonly proposed include 18-year term limits (supported by 67% of Americans), enforceable ethics codes (currently the Court's self-adopted code has no enforcement mechanism), and Court expansion (less popular, with concerns about precedent for "payback"). The Biden administration proposed constitutional amendments for term limits and ethical requirements. None have advanced in Congress.

The deeper problem may be that reforms cannot restore what has been lost. Legitimacy depends on public perception that the Court operates on principle rather than politics. Once that perception collapses—and polling shows it has—structural changes may be insufficient to rebuild trust. The justices who dismantled precedent will remain on the Court for decades. The precedents they overturned will not return without new overrulings, which would further demonstrate that law is merely politics. And the polarized legal profession that produced this Court will continue producing lawyers, judges, and justices who see their opponents' legal philosophy as illegitimate rather than merely wrong.

The constitutional order depends on shared premises that once transcended partisan divides—that precedent constrains, that the Court is not simply a super-legislature, that law is something more than power dressed in robes. When the profession that defines and defends the rule of law cannot agree that law exists as a constraint on raw power, what remains is not constitutional democracy but its simulation, maintained only so long as those with power find it convenient.

Conclusion: The Court has gained power by sacrificing its legitimacy

The Roberts Court's aggressive campaign to overturn precedent has achieved conservative policy victories across abortion, administrative law, affirmative action, church-state relations, and union rights. But the cost has been the very foundation of the Court's authority: public confidence that it operates on principle rather than politics. Approval has collapsed to fifty-year lows. The partisan gap has widened to levels never before recorded. Justices are openly feuding about whether the institution retains legitimacy.

The pattern reveals something more troubling than merely aggressive use of judicial power. The stare decisis doctrine that once constrained the Court has been hollowed out to the point of incoherence. Any precedent can be characterized as "egregiously wrong." Any reliance interests can be dismissed as insufficiently "concrete." Any methodological approach—originalism, history and tradition, textualism—can be applied selectively to reach preferred outcomes. The factors that supposedly guide overruling decisions have become tools to rationalize predetermined results rather than constraints that limit them.

If the current trajectory continues, the consequence will be not judicial supremacy but judicial irrelevance. A Court perceived as merely another partisan institution loses the moral authority to demand compliance with its rulings. The conservative movement may have won the Court while losing the constitutional order it was supposed to interpret. And the justices who dismantled precedent in the name of constitutional fidelity may discover too late that they have destroyed the very premise on which their power depends: the belief that when the Supreme Court speaks, it speaks for something larger than the preferences of five unelected lawyers with lifetime tenure.

The tragedy is that stare decisis exists precisely to prevent this outcome—to ensure that law transcends the individuals who happen to interpret it at any given moment. By abandoning that principle whenever it inconveniences their agenda, the Court's majority has taught the country a lesson they may come to regret: that constitutional rights are secure only until the next appointment, that the rule of law is merely what those in power say it is, and that the guardian of the constitutional order is itself the greatest threat to its survival.

Gemini

The Unraveling of Precedent: A Comprehensive Analysis of the Supreme Court’s Jurisprudential Shift (2019–2025)

1. Introduction: The Twilight of Stare Decisis

The American legal system stands at a precipice, marking a distinct and transformative epoch in its constitutional history. The period between 2019 and 2025 has witnessed a systematic dismantling of landmark precedents and a fundamental reordering of interpretive methodologies by the Supreme Court of the United States. This era is defined not merely by a shift in substantive outcomes—conservative policy preferences displacing liberal ones—but by a revolution in the methods of adjudication itself. The doctrine of stare decisis, the principle that courts should stand by decided matters to ensure stability and predictability, has been effectively demoted from a foundational constraint to a discretionary "pragmatic exception," vulnerable to the ideological certitude of a new judicial majority.

The Roberts Court, particularly following the confirmation of Justice Amy Coney Barrett in 2020, has presided over a rapid acceleration in the overturning of settled law. This transformation extends beyond the high-profile revocation of the constitutional right to abortion in Dobbs v. Jackson Women's Health Organization. It encompasses a totalizing re-evaluation of the administrative state, exemplified by Loper Bright Enterprises v. Raimondo and Corner Post, Inc. v. Board of Governors , the redefinition of religious liberty in Kennedy v. Bremerton , and the restructuring of democratic processes in Rucho v. Common Cause and Alabama v. Milligan.

At the heart of this shift is the displacement of traditional "interest balancing" and "means-end scrutiny"—tools that allowed for the accommodation of evolving societal norms—with a rigid "history and tradition" test. This methodology, rooted in a specific brand of Originalism, tethers modern rights to the legal consensus of the mid-19th century, rendering decades of 20th-century jurisprudence constitutionally suspect. The result is a legal landscape where reliance interests are discarded in favor of "correctness," and where the "Super-Precedents" of the past are revealed to be fragile constructs.

This report provides an exhaustive analysis of this phenomenon across ten critical dimensions. It dissects the doctrinal evolution of stare decisis, contrasts the "societal reliance" of Casey with the "concrete interest" of Dobbs, and maps the empirical pattern of overturned cases. It scrutinizes the procedural radicalism of the "Shadow Docket," the "legitimacy crisis" reflected in plummeting public confidence , and the "epistemic closure" of a conservative legal movement insulated from mainstream scholarship. Finally, by offering comparative perspectives from the United Kingdom, Canada, and Australia, this analysis underscores the radical exceptionalism of the current U.S. approach to precedent.

2. The Doctrine of Stare Decisis: From Institutional Stability to "Demonstrable Error"

2.1 The Traditional Framework: Reliance and the "Special Justification"

Historically, stare decisis has functioned as the ballast of the judiciary, promoting the evenhanded, predictable, and consistent development of legal principles. It fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process. While the Supreme Court has famously noted that stare decisis is "not an inexorable command"—particularly in constitutional cases where legislative correction is nearly impossible—it traditionally required a "special justification" beyond a mere belief that a prior case was wrongly decided to justify overruling it.

The conventional analysis involves a multi-factor test to determine whether a precedent should be retained despite perceived error. These factors, codified in Planned Parenthood v. Casey (1992) and reaffirmed in cases like Ramos v. Louisiana (2020), include:

Workability: Is the rule capable of consistent application by lower courts, or does it defy practical implementation?.
Reliance: Have societal, economic, or individual structures developed around the precedent?.
Legal Developments: Have subsequent cases eroded the precedent's doctrinal underpinnings, leaving it an outlier?.
Factual Changes: Have the facts changed so significantly that the old rule no longer has application?.

Reliance has historically been the most potent of these factors. In Casey, the plurality refused to overrule Roe v. Wade in part because "people have organized their intimate lives and made choices that define their views of themselves and their places in society" based on the availability of abortion. This concept of "societal reliance"—the idea that the Court owes a duty of stability to the citizenry who have structured their lives around a right—was a bulwark against rapid legal change.

2.2 The Theoretical Shift: "Demonstrable Error" and the Rejection of Reliance

In the contemporary era (2019-2025), the weight assigned to these factors has shifted dramatically. For the ascendant wing of Originalist jurists, stare decisis presents a theoretical conflict: if the Constitution has a fixed meaning at the time of ratification, and a precedent deviates from that meaning, adhering to the precedent is arguably an act of infidelity to the supreme law. Justice Scalia famously managed this tension by describing stare decisis as a "pragmatic exception" to his originalist philosophy. However, the current majority has moved beyond this "exception" view toward a stance of hostility.

Justice Thomas’s concurrence in Gamble v. United States (2019) articulates the vanguard of this new approach. He argues that federal courts are obligated to follow the "written law" (the Constitution) over "demonstrably erroneous" judicial precedents. Under this hierarchy, the reliance interests of the public or the workability of a rule are "inapposite" if the original decision was wrong as a matter of text and history. This view posits that the Court has no authority to maintain an erroneous interpretation, effectively stripping stare decisis of its power to preserve any decision the current majority deems "wrong."

2.3 The Ramos Factors: Weaponizing the Analysis

While Justice Thomas advocates for a near-total rejection of stare decisis for constitutional errors, the majority block (Justices Kavanaugh, Gorsuch, Alito, Roberts, Barrett) has adopted a modified framework that retains the language of stare decisis but applies it in a way that facilitates overturning. In Ramos v. Louisiana (2020), Justice Kavanaugh attempted to codify the "special justifications" required to overrule. He listed three broad categories: (1) the quality of the precedent's reasoning; (2) the precedent's consistency with related decisions; and (3) reliance.

Crucially, the "quality of reasoning" factor has become the primary engine for overturning. In Dobbs, Justice Alito dismissed Roe primarily because its reasoning was "egregiously wrong" and "exceptionally weak". By elevating the subjective assessment of a past opinion's "quality" above objective metrics of reliance, the Ramos framework allows the current majority to characterize their disagreement with past methodologies (like living constitutionalism) as an objective flaw in reasoning. This effectively collapses the distinction between "thinking a case is wrong" and "finding a special justification to overrule it," rendering stare decisis a hollow check on power.

Factor	Traditional Application (Pre-2018)	Current Application (Roberts Court 2019-2025)
Primary Focus	Reliance, Stability, Institutional Integrity	Correctness, "Quality of Reasoning," Original Meaning
Reliance Interests	Broad "Societal Reliance" (e.g., Casey)	Narrow concrete property/contract interests (Dobbs)
Workability	Can lower courts apply the test?	Does the test align with history/tradition?
Burden of Proof	Strong presumption of validity	"Weak presumption" in constitutional cases
Role of Error	Insufficient on its own to overrule	"Egregious error" is sufficient justification

3. The Dobbs Decision: The Demolition of Reliance and the "History" Test

3.1 The "Egregiously Wrong" Standard

The decision in Dobbs v. Jackson Women's Health Organization (2022) stands as the supreme exemplar of the new jurisprudential era. In overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the Court did not merely alter abortion law; it fundamentally rewrote the law of precedent. Justice Alito's majority opinion declared that Roe was "egregiously wrong from the start" and that its "reasoning was exceptionally weak". This language signaled that the duration of a precedent (50 years) and its repeated reaffirmation (in Casey) offered no protection against a majority convinced of its interpretive error.

The opinion is notable for how it dismantled Casey's "precedent on precedent." Casey had established a nuanced stare decisis analysis that weighed the political costs of overruling and the "societal reliance" of women who had organized their lives around reproductive autonomy. Dobbs explicitly rejected this form of reliance. The majority held that "intangible" reliance—such as the ability to participate equally in economic and social life—was too amorphous to constrain the Court. Instead, the Court narrowed cognizable reliance to concrete property or contract rights, which are rarely present in civil liberties cases. This redefinition effectively eliminates reliance as a barrier to overturning decisions related to privacy, speech, or equal protection.

3.2 The "History and Tradition" Test

Dobbs replaced the "undue burden" standard with a strict "History and Tradition" test. The Court asked whether the right to abortion was "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty". By surveying 19th-century anti-abortion laws and common law treatises, the Court concluded that because abortion was criminalized in 1868 (when the Fourteenth Amendment was ratified), it could not be a protected liberty interest today.

This methodology has profound ripple effects. It tethers constitutional rights to the moral and legal consensus of the mid-19th century—a time when women, people of color, and the LGBTQ+ community were largely excluded from the political process. As critics and dissenting Justices have noted, this method is structurally biased against rights that have evolved or been recognized in the 20th and 21st centuries. If a right was not recognized in 1868, it is presumptively unconstitutional under the Dobbs framework, unless it can be analogized to a historical practice—a hurdle that is often insurmountable for modern civil liberties.

3.3 The Threat to Other Rights: Obergefell, Lawrence, Griswold

One of the most contentious aspects of Dobbs is its implication for other substantive due process rights. The majority opinion attempted to build a firewall, stating that "abortion is unique" because it involves "potential life" or an "unborn human being," and therefore the decision should not be understood to cast doubt on precedents like Obergefell v. Hodges (same-sex marriage), Lawrence v. Texas (sodomy), or Griswold v. Connecticut (contraception).

However, Justice Thomas’s concurrence destroyed this assurance. He explicitly wrote: "in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell". Thomas argued that the entire doctrine of substantive due process is "demonstrably erroneous" and "exalts judges at the expense of the People." While the majority distinguished abortion based on the "destruction of life," the legal mechanism used to overturn Roe—the rejection of unenumerated rights not rooted in 1868 history—applies with equal force to contraception and same-sex marriage. Neither of those practices was protected in 1868; indeed, both were widely criminalized or prohibited. Legal scholars argue that the distinction drawn by the majority is "unprincipled" because the Dobbs methodology would flunk Obergefell just as easily as it flunked Roe.

4. The Pattern of Overturned Precedents (2019–2025)

The overturning of Roe was not an isolated event but the crest of a wave. Between 2019 and 2025, the Court systematically revisited and reversed major precedents across distinct areas of law. This pattern reveals a coordinated effort to "correct" the constitutional order by stripping away 20th-century judicial innovations.

4.1 Administrative Law: Loper Bright and Corner Post

In June 2024, the Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), a foundational administrative law precedent that had required courts to defer to reasonable agency interpretations of ambiguous statutes. For forty years, Chevron deference was the bedrock of federal regulation, cited in thousands of cases. The Court in Loper Bright declared Chevron "unworkable" and fundamentally incompatible with the Administrative Procedure Act (APA) and Article III, which empowers judges, not agencies, to "say what the law is".

The overturning of Chevron is perhaps more structurally significant than Dobbs. While Dobbs returned power to the states, Loper Bright transfers power from the Executive Branch to the Judiciary. It invites challenges to virtually every federal regulation on the books. Crucially, the Court coupled this with the decision in Corner Post, Inc. v. Board of Governors (2024), which effectively eliminated the statute of limitations for challenging old agency rules.

The *Corner Post* Multiplier Effect: By holding that the statute of limitations for APA claims does not accrue until a plaintiff is injured (rather than when the rule is promulgated), the Court allows new companies to challenge regulations from the 1970s or 1980s. A newly incorporated entity can now challenge a 40-year-old regulation de novo, without any deference to the agency. This creates "perpetual jeopardy" for settled law and nullifies the reliance interests of industries and the public on the stability of the administrative state.

4.2 Religion: Kennedy v. Bremerton and the Death of Lemon

In Kennedy v. Bremerton (2022), the Court overruled the Lemon v. Kurtzman (1971) test, which had governed Establishment Clause jurisprudence for 50 years. Lemon sought to prevent excessive government entanglement with religion. The Kennedy majority claimed that Lemon had already been "abandoned" (a form of "soft" overruling where a case is ignored until it is formally buried) and replaced it with a test focused on "historical practices and understandings". This allows for significantly more religious expression in public spheres, such as school prayer, provided it fits within a historical tradition of religious acknowledgment.

4.3 Equal Protection: SFFA v. Harvard

While not using the words "overruled," the Court in Students for Fair Admissions v. Harvard (2023) effectively gutted Grutter v. Bollinger (2003), which had allowed the use of race as a "plus factor" in university admissions. The majority held that such programs violated the Equal Protection Clause, rejecting the "educational benefits of diversity" rationale that Grutter had enshrined. Justice Thomas’s concurrence was more explicit, clarifying that Grutter was, for all intents and purposes, overruled. This decision overturned decades of reliance by higher education institutions and altered the interpretation of the Fourteenth Amendment from an anti-subordination principle to a "colorblind" rule.

4.4 Voting Rights and Gerrymandering: Rucho and Milligan

The trend began earlier with Rucho v. Common Cause (2019), where the Court overruled lower court attempts to regulate partisan gerrymandering, declaring the issue a "political question" beyond the reach of federal courts. In Alabama v. Milligan , while the Court ultimately upheld Section 2 of the VRA on the merits, it used the Shadow Docket to stay a lower court ruling, effectively allowing Alabama to conduct the 2022 election under an illegal map. This illustrates how procedural mechanisms are used to undermine rights in the short term, even if the precedent is technically retained.

Table 1: Major Precedents Overruled or Abrogated (2018–2025)

Case Name	Year	Overruled/Abrogated Precedent	Subject Matter	Key Rationale for Overruling
Janus v. AFSCME	2018	Abood (1977)	Labor Unions	1st Amd compelled speech; Abood "poorly reasoned."
Knick v. Township of Scott	2019	Williamson County (1985)	Property Rights	Takings clause requires immediate federal access.
Rucho v. Common Cause	2019	Davis v. Bandemer (1986)	Gerrymandering	Non-justiciable political question.
Ramos v. Louisiana	2020	Apodaca (1972)	Jury Unanimity	6th Amd requires unanimity; Apodaca was an anomaly.
Edwards v. Vannoy	2021	Teague (1989) (partially)	Retroactivity	New procedural rules (like Ramos) apply only prospectively.
Dobbs v. Jackson	2022	Roe (1973), Casey (1992)	Abortion	No history/tradition in 1868; "Egregiously wrong."
Kennedy v. Bremerton	2022	Lemon (1971)	Religion	Lemon "abandoned"; History and tradition test adopted.
SFFA v. Harvard	2023	Grutter (2003)	Affirmative Action	14th Amd requires colorblindness; diversity not compelling.
Loper Bright v. Raimondo	2024	Chevron (1984)	Admin Law	APA requires courts to decide law; deference is abdication.
Corner Post v. Board	2024	Statute of Limit. Precedents	Admin Procedure	Injury accrual rule allows new challenges to old rules.

5. The Concept of 'Super-Precedents' vs. Reality

5.1 The Academic Definition

The term "super-precedent" has been used in confirmation hearings to describe cases so deeply embedded in the legal and cultural fabric that they are effectively immune from overruling. Scholars like Michael Gerhardt and Justice Amy Coney Barrett (in her academic writing) have defined super-precedents as cases that "no political actor and no people seriously push for... overruling". Examples often cited include Marbury v. Madison or Brown v. Board of Education.

5.2 The "Settled Law" Trap

During their confirmation hearings, Justices Gorsuch, Kavanaugh, and Barrett were repeatedly asked if Roe v. Wade was "settled law." They generally affirmed that it was "precedent of the Supreme Court" entitled to respect under stare decisis. Justice Kavanaugh went so far as to call Casey "precedent on precedent". However, these statements proved to be descriptive rather than normative. They acknowledged Roe existed as a precedent, not that it was unassailable.

The overturning of Roe revealed the fragility of the "super-precedent" concept. If a case is largely accepted by the public or academy but rejected by a specific political movement (the conservative legal movement), it does not qualify as a super-precedent under Barrett’s definition because "political actors" are pushing for its overruling. Thus, the existence of a concerted campaign against a precedent (like the pro-life movement) paradoxically prevents it from achieving "super" status, making it more vulnerable to overturning. Dobbs demonstrated that no case—regardless of its cultural footprint—is a "super-precedent" if five Justices believe it rests on a constitutional error.

6. Methodological Inconsistencies: Selective Originalism

A primary critique of the Roberts Court's dismantling of precedent is the selectivity with which it applies its "Originalist" and "History and Tradition" methodologies. Critics argue that the Court engages in "law office history"—cherry-picking historical data to support desired outcomes while ignoring contrary evidence.

6.1 Bruen vs. Dobbs: The Tradition Trap

In New York State Rifle & Pistol Association v. Bruen (2022), the Court expanded gun rights by striking down a century-old New York law. The test announced was that a gun regulation is unconstitutional unless the government can demonstrate it is consistent with the "historical tradition of firearm regulation". The Court dismissed 20th-century history, focusing largely on the late 18th and mid-19th centuries.

However, scholars point out inconsistencies in how this history is applied. In Dobbs, the Court relied heavily on mid-19th-century abortion bans to deny a right. In Bruen, the Court ignored or distinguished mid-19th-century gun restrictions (like bans on carrying weapons in public) to create a right. In affirmative action cases (SFFA), the Court ignored the Reconstruction-era history of race-conscious measures (like the Freedmen's Bureau) intended to aid Black Americans, instead adopting a "colorblind" reading of the 14th Amendment that contradicts its original purpose.

6.2 The "Major Questions Doctrine" as Evasion

Another methodological inconsistency is the use of the "Major Questions Doctrine" (MQD) to strike down agency actions without formally overruling Chevron (prior to Loper Bright). In cases like West Virginia v. EPA and Biden v. Nebraska (student loans), the Court discovered a new rule that Congress must speak "clearly" on major economic issues. This doctrine has no basis in the text or original meaning of the Constitution but was manufactured by the Court to bypass the textual reading of statutes that authorized broad agency power. This suggests a "living constitutionalism" of the Right—inventing new doctrines to curb the administrative state while claiming to adhere to strict text.

7. The Shadow Docket: Procedural Radicalism

The "Shadow Docket" refers to the Court's increasing use of emergency orders (summary dispositions) to make significant legal rulings without full briefing, oral argument, or detailed opinions. This procedural mechanism has become a primary vehicle for altering the status quo and signaling shifts in stare decisis.

7.1 Weaponizing the Emergency Docket

Historically, emergency stays were reserved for preserving the status quo while a case proceeded. However, since 2019, the Court has used the Shadow Docket to disrupt the status quo. A prime example is Tandon v. Newsom (2021), where the Court—on an emergency appeal regarding COVID-19 restrictions—fundamentally redefined the Free Exercise Clause, mandating that religious activities must be treated as well as any secular activity. This effectively overruled prior Smith-era precedents regarding neutral laws of general applicability without a full trial.

7.2 The Texas SB8 Case

The most stark abuse of the Shadow Docket occurred in Whole Woman's Health v. Jackson (2021). The Court allowed Texas's S.B. 8 (a six-week abortion ban enforced by private bounty hunters) to go into effect, despite it being a flagrant violation of Roe (which was still the law at the time). By refusing to block the law via a one-paragraph unsigned order, the Court effectively nullified Roe in Texas months before Dobbs was decided. Professor Steve Vladeck argued this was "unreasoned, inconsistent, and impossible to defend," signaling to lower courts that precedents could be ignored if the Supreme Court signaled tacit approval via the Shadow Docket.

8. The Legitimacy Crisis and Public Opinion

The aggressive overturning of precedent has precipitated a severe crisis of legitimacy for the Supreme Court. The gap between the Court's rulings and public consensus has widened to historic levels, fueling accusations that the Court acts as a political legislative body rather than a neutral arbiter.

8.1 Plummeting Approval Ratings

According to Gallup polling, public approval of the Supreme Court hit a record low of 40% in late 2021 and remained in the low 40s through 2025. Prior to 2019, approval typically hovered between 50% and 60%. The partisan divide is stark: Republicans' approval surged to nearly 80% after Dobbs, while Democrats' approval collapsed to 14%. This polarization indicates that the public now views the Court as a partisan actor. The perception that Justices are "politicians in robes" undermines the Court's sole currency: its moral authority to command respect for its judgments.

8.2 Justice Kagan’s Dissent and "Hubris"

Justice Kagan has become the vocal critic of the majority's approach to legitimacy. In her Dobbs dissent, she warned that the Court forfeits its legitimacy when it "substitutes a rule of judges for the rule of law". She accused the majority of "hubris" and acting based on "brute force" rather than legal reason. Kagan argues that stare decisis is a doctrine of "judicial modesty," and its abandonment signals a Court that believes it possesses wisdom superior to all its predecessors.

8.3 Public Perception of Ethics and Corruption

The legitimacy crisis is compounded by ethical scandals involving Justices Thomas and Alito (e.g., undisclosed gifts from billionaires). The refusal of the Justices to adopt a binding code of ethics, combined with their aggressive reshaping of the law, reinforces the narrative of an unaccountable elite. The "ProPublica" revelations regarding Justice Alito’s relationship with litigants, and his subsequent defensive op-ed in the Wall Street Journal (pre-butting the article), have further eroded the image of judicial impartiality.

9. Academic Perspectives and Media Radicalization

9.1 The Federalist Society Pipeline and "Epistemic Closure"

Academic analysis suggests that the current Court's behavior is the result of a decades-long project by the conservative legal movement to create an alternative legal ecosystem. The Federalist Society has been central to this, serving as a gatekeeper for judicial appointments. Scholars describe a phenomenon of "epistemic closure," where conservative judges and clerks read the same authors, attend the same conferences, and cite the same "law office history," insulating themselves from mainstream historical and legal scholarship.

9.2 Polarization of Clerkships

Data on law clerk hiring reveals extreme polarization. Conservative Justices increasingly hire clerks solely from conservative "feeder judges" (like Judges Ho, Sutton, or Pryor), while liberal Justices hire from liberal judges. This "ideological sorting" means that the internal debate within the Supreme Court chambers has diminished. Clerks are selected for their loyalty to the "movement" and their adherence to originalist methodology, reinforcing the echo chamber that produces opinions like Dobbs and Loper Bright.

9.3 Media Radicalization of the Legal Profession

The legal profession is also influenced by a fragmented media landscape. Just as the public is polarized by cable news, legal elites are influenced by "siloed" legal media and blogs. The rapid dissemination of fringe legal theories (like the independent state legislature theory or the non-delegation doctrine) through conservative blogs and podcasts normalizes radical ideas, moving them from the "off-the-wall" to "on-the-wall" in record time. This accelerationist dynamic encourages the Court to move faster in overturning precedent, as the "Overton window" of legal possibility shifts rapidly to the right.

10. Comparative Historical Perspectives

10.1 The UK House of Lords 1966 Practice Statement

The U.S. Supreme Court's current trajectory contrasts sharply with the British experience. Until 1966, the House of Lords held that it was absolutely bound by its own decisions. The "Practice Statement of 1966" introduced the power to overrule, but emphasized it should be used "sparingly" to avoid "injustice". In the UK (and now the UK Supreme Court), overruling remains a rare, momentous event, typically reserved for when a rule has become totally unworkable or obsolete. The U.S. practice of overruling constitutional rights based on a 5-4 vote and a dispute over historical method is viewed internationally as an anomaly that threatens the rule of law.

10.2 Canada and Australia

In Canada, the Supreme Court applies a strict vertical stare decisis and a rigorous horizontal stare decisis. In R v. Sullivan (2022), the Court clarified that lower courts cannot simply disregard precedents they dislike; they are bound unless the precedent has been undermined by a higher court. Similarly, the High Court of Australia allows overruling but requires that the previous decision be "manifestly wrong" and "productive of great inconvenience"—a high bar that prevents the kind of ideological oscillation seen in the U.S..

10.3 Historical Parallels: The Lochner Era and 1937

The current Court's aggression is most frequently compared to the Lochner era (1905–1937), where a conservative Court struck down progressive economic legislation (minimum wage, child labor laws) based on a "liberty of contract" theory not explicitly found in the Constitution. The end of that era—the "switch in time that saved nine"—occurred only under the threat of FDR's court-packing plan. Today, critics argue the Roberts Court is engaging in a similar "judicial usurpation," imposing its economic and social preferences against the democratic will. However, unlike 1937, the current political polarization makes a legislative check (like court packing) unlikely, leaving the Court unconstrained.

11. Conclusion: The Unraveling of the Rule of Law?

The period from 2019 to 2025 represents a definitive rupture in American jurisprudence. The Supreme Court has effectively abandoned the stability-focused doctrine of stare decisis in favor of a methodology that prioritizes a specific originalist vision of the Constitution. By overturning Roe, Chevron, Lemon, and Grutter, the Court has demonstrated that no precedent is safe if it conflicts with the majority's reading of history and tradition.

This shift has come at a high cost. The redefinition of "reliance" to exclude societal interests, the use of the Shadow Docket to circumvent procedural norms, and the selective application of historical evidence have severely damaged the Court's legitimacy. The "epistemic closure" of the conservative legal movement suggests that this trend will not self-correct; rather, the pipeline of judges and clerks is designed to perpetuate and accelerate this project.

As the Court moves forward, the potential for further radicalization exists. The "super-precedents" of the 20th century—marriage equality, contraception, and the broader scope of federal power—stand on the precipice. If the "quality of reasoning" test remains the primary standard for overruling, the legal landscape of the United States will continue to be volatile, unpredictable, and increasingly divorced from the lived reality of its citizens. The transition from a judiciary of "judgment" to a judiciary of "will" appears nearly complete.

ChatGPT

Supreme Court, Stare Decisis, and the Abandonment of Precedent

Stare decisis and why it matters for a legal order

In the U.S. legal system—built on a common-law tradition—stare decisis (“stand by things decided”) is the principle that courts should generally follow prior decisions when the same legal question returns. The doctrine is typically justified as a rule-of-law technology: it makes outcomes more predictable, supports stability of expectations, encourages consistent treatment across similar cases, and helps legitimate judicial authority by constraining judges’ discretion. [1]

The modern Supreme Court itself has repeatedly described these functions in canonical terms. For instance, the Court has said that stare decisis promotes “evenhanded, predictable, and consistent” law, fosters reliance, and contributes to the perceived integrity of the judicial process. [2] At the same time, the Court has long insisted that stare decisis is not absolute—especially in constitutional cases, where Congress cannot easily “fix” the Court’s interpretation, and where the Court sometimes views itself as duty-bound to correct serious error. [3]

Traditional stare decisis doctrine, as summarized in Supreme Court opinions and congressional legal research, tends to organize “overruling” around a cluster of recurring considerations. The Court commonly asks whether the precedent has proved workable, whether reliance interests counsel retention, whether later doctrinal developments have undermined coherence, and whether factual or legal circumstances have changed enough to weaken the old rule. [4] These are not mechanical factors; rather, they are meant to operate as a disciplined “second look” that makes overruling a high-friction move needing special justification beyond mere disagreement. [5]

Historically, the Court has overruled important precedents—sometimes dramatically (e.g., ending “separate but equal,” abandoning Lochner-era constraints on economic regulation)—but the narrations that legitimized those moves typically emphasized the exceptional nature of overruling and tried to frame reversal as compelled by constitutional principle, changed circumstances, or an unavoidably unworkable rule. [6] Empirically, outright overruling has also been treated as relatively uncommon in the long arc of Supreme Court history, though it rises and falls in bursts across eras (and can be measured in different ways depending on whether scholars count explicit overrulings, “departures,” or functional/stealth reversals). [7]

Dobbs and the transformation of abortion precedent

The most visible rupture in modern stare decisis practice is Dobbs v. Jackson Women’s Health Organization (2022), which overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and returned primary authority over abortion regulation to political institutions. [8]

The key stare decisis contrast is that Casey treated Roe as a precedent whose institutional weight was inseparable from legitimacy concerns. In Casey’s stare decisis discussion, the plurality emphasized (among other points) that Roe had not become unworkable; that substantial reliance existed in a broad, life-organizing sense; that doctrinal developments had not eroded Roe into an anachronism; and that no factual changes had undermined Roe’s “central holding.” [9] Casey also made legitimacy explicit: because the Court lacks the purse and (largely) the sword, its power depends on public acceptance of the judiciary as fit to declare what law requires, and frequent or politically suggestive overruling can tax that acceptance. [10] In language directly relevant to the modern controversy, Casey warned that to overrule simply because of a change in judicial membership would invite the perception that the Court resembles political branches, inflicting lasting institutional damage. [10]

Dobbs sharply re-read Casey. The Dobbs majority framed its approach as a return to “longstanding” stare decisis factors, arguing that the dissent’s insistence on changed circumstances as a near-prerequisite was a “new version” of stare decisis inconsistent with the Court’s actual history of overruling. [11] The majority characterized Roe as “egregiously wrong,” constitutionally untethered, and damaging to the Court and the nation. [12] This matters because it elevates a particular kind of error claim—egregious wrongness—as sufficient to justify reversal even absent the sorts of changed circumstances Casey treated as fundamental. [13]

The reliance dispute illustrates the broader methodological break. Casey famously described reliance in social and economic participation terms—people organizing intimate relationships, and women’s equal participation in social and economic life being facilitated by reproductive control. [14] Dobbs rejected that framing as too intangible for courts to evaluate, emphasizing instead “concrete” reliance more typical of property and contract settings and arguing that the Court is ill-equipped to adjudicate “generalized assertions about the national psyche.” [15] The dissent responded that the “intangibility” label is a category mistake because many constitutional rights generate reliance that is not reducible to economic contracts, and that treating reliance as requiring a narrow, concrete showing would destabilize many rights-based precedents. [15]

A final component of the Dobbs stare decisis story is the internal institutional disagreement visible in entity["people","John Roberts","chief justice"]’s separate opinion. He concurred in the judgment upholding Mississippi’s 15-week ban but argued that the Court should have taken a “measured course”: discard the viability line while avoiding the full repudiation of Roe and Casey’s recognition of a constitutional right. [16] His concurrence emphasized a principle of judicial restraint (“decide no more than necessary”) and proposed a “reasonable opportunity” standard that, in his view, would resolve the case without the majority’s broader rupture. [16]

A broader pattern of reversals and “stealth” precedent erosion

Dobbs sits inside a wider set of decisions (especially 2018–2024, with continuing acceleration into 2025 emergency-docket controversies) where the Court has either explicitly overruled major precedents or announced that older frameworks are no longer controlling, sometimes without the classic ritual language of overruling. [17]

A useful starting point is Janus v. AFSCME (2018), which overruled Abood (1977) regarding public-sector union agency fees. Janus is often cited because it provides a “textbook” stare decisis checklist and thus functions as an internal baseline for what the Court says it is doing. The majority identified key overruling factors—quality of reasoning, workability, consistency with related decisions, intervening developments, and reliance—and concluded that stare decisis did not require keeping Abood. [18] The dissent treated this as a paradigm case of destabilizing entrenched reliance (dozens of states structured labor regimes around Abood), accusing the majority of treating “wrongness” as effectively enough. [18]

In Rucho v. Common Cause (2019), the Court held that partisan gerrymandering claims present political questions beyond federal judicial power, emphasizing the absence of “judicially discoverable and manageable standards.” [19] While Rucho did not overrule in the simple A-overrules-B sense, its practical effect was to close federal courthouse doors to a category of claims the Court had been evaluating (and struggling with) for decades, shifting the regulation of partisan gerrymandering toward political institutions and state courts. [19]

In Kennedy v. Bremerton School District (2022), the Court declared that it had “long ago abandoned” the Lemon test and its “endorsement” offshoot, replacing a familiar doctrinal framework with an approach anchored in “historical practices and understandings.” [20] The dissent explicitly described this as overruling Lemon v. Kurtzman (1971) and replacing decades of precedent with a new “history and tradition” test, warning that such a move both destabilizes doctrine and produces poor guidance for administrators who are not trained historians. [21]

In Students for Fair Admissions v. Harvard/UNC (2023), the Court held that the race-conscious admissions programs at Harvard and UNC violated equal protection constraints, sharply restricting (and widely understood as ending) the doctrinal regime under which limited race-conscious admissions were permitted. [22] The Court’s own narrative emphasized that “twenty years have passed” since Grutter (2003) with no end to race-based admissions in sight and treated the universities’ programs as failing strict scrutiny, including the requirement of a meaningful logical end point. [23] The dissents framed the decision as destabilizing and as failing to satisfy the “extraordinary showing” demanded by stare decisis in such a longstanding and reliance-structured area. [24]

In Loper Bright Enterprises v. Raimondo (2024), the Court overruled Chevron (1984), a foundational doctrine directing courts to defer to reasonable agency interpretations of ambiguous statutes. [25] The majority characterized Chevron as undermining rule-of-law values and said stare decisis did not require persistence in “the Chevron project,” emphasizing reasoning quality, workability, and broader institutional values. [26] Notably, the Court tried to stabilize the blast radius by saying that prior cases that relied on Chevron’s framework remain protected by statutory stare decisis as to their discrete holdings. [27] The dissent countered that Chevron had “strong” stare decisis claims (including congressional acquiescence and pervasive reliance) and warned of massive systemic disruption. [27]

Two additional decisions illustrate how methodological shifts can function as precedent displacement even without explicit overruling language. In New York State Rifle & Pistol Association v. Bruen (2022), the Court rejected interest-balancing/means-end scrutiny for Second Amendment challenges and required the government to justify modern gun regulations by analogy to historical tradition at relevant constitutional moments (1791 and 1868 are treated as crucial reference points). [28] And in West Virginia v. EPA (2022), the Court invoked the “major questions doctrine” logic—requiring clear congressional authorization for broad regulatory actions—a move that critics argue can narrow or redirect how lower courts apply longstanding administrative-law precedents and delegation principles. [29]

Across this cluster, legal scholars increasingly distinguish between formal overrulings and precedent evasion/stealth reversal: narrowing a precedent into near-irrelevance, displacing its doctrinal test, or switching methodological baselines so that older cases no longer control outcomes in practice. [30] This framing is important because a Court that rarely says “we overrule X” can still produce comparable destabilization by changing the decision rules lower courts must apply. [31]

The “super-precedent” and “settled law” dilemma

A persistent theme in public debate is whether some precedents become effectively untouchable—sometimes labeled “super-precedents.” The concept is contested, but it points to a real institutional phenomenon: some decisions become so integrated into the legal and political order that they are no longer meaningfully vulnerable in ordinary litigation. [32]

The super-precedent debate mattered especially because Roe had long been invoked as a kind of settled landmark, even though it remained contested in politics and in litigation. During entity["people","Amy Coney Barrett","supreme court justice"]’s Senate confirmation hearing, she explained that some scholars (and she cited entity["people","Richard Fallon","constitutional law scholar"]) treat Roe as not super-precedent precisely because “calls for its overruling have never ceased,” contrasting it with examples like Marbury v. Madison and Brown v. Board of Education that (in this usage) are viewed as essentially unquestioned. [33]

This debate intersects with the politics of confirmation hearings, where nominees often emphasize respect for precedent while avoiding commitments about future votes. In that hearing, Barrett underscored that Roe and Casey were precedents that had held the Constitution protected a right to terminate pregnancy and that Casey reaffirmed Roe’s central holding and elaborated the governing test. [34] Public controversy intensified after Dobbs because support for precedent, stated in general terms at confirmation, came to be interpreted by many audiences as implying greater stability than the Court ultimately delivered. [35]

At the doctrinal level, the “if Roe wasn’t safe after 50 years, what is?” question is not just rhetorical. Casey itself suggested that in rare, intensely divisive controversies, a precedent may require unusual force to resist overturning efforts and preserve legitimacy, and it warned that overruling under political pressure, absent the most compelling reason, would undermine the Court’s authority. [36] Dobbs rejected that legitimacy-centered entrenchment story and treated Casey’s approach as abortion-special stare decisis, insisting instead that the correct inquiry is traditional stare decisis plus the constitutional merits. [37]

The deeper institutional implication is that “settled law” becomes harder to operationalize as a cultural concept if the Court treats even long-standing, socially structuring decisions as presumptively reversible whenever five (or six) Justices conclude the precedent was seriously wrong. Critics argue that this collapses stare decisis into a descriptive claim—precedent binds only until a new majority forms—while defenders respond that the Court has always reserved authority to overrule egregious errors and that the legitimacy of constitutional law depends on fidelity to the Constitution rather than mistaken precedents. [38]

Methodological shifts and accusations of inconsistency

Many disputes about “abandoning precedent” are, at bottom, disputes about methodology: what counts as legitimate constitutional/legal reasoning and how that method interacts with inherited doctrine.

The contemporary Court’s most consequential methodological move is the expansion of “history and tradition” tests. Dobbs treated the unenumerated-right inquiry as requiring proof that a right is deeply rooted in history and tradition and essential to ordered liberty. [39] Bruen framed Second Amendment adjudication as a burden-shifting inquiry where the government must justify regulations by historical analogues and where “not all history is created equal” (with 1791 and 1868 treated as key constitutional moments). [40] Kennedy replaced Lemon/endorsement analysis with an Establishment Clause approach anchored in historical practices and understandings. [20]

Critics argue that these historical methodologies can be applied with different reference points, levels of generality, and openness to analogical reasoning—producing the appearance that history is being selected to fit outcomes. [41] Even Justices and dissents have warned about courts “playing amateur historian” and producing unstable guidance when adjudication turns heavily on contestable historical narratives. [42]

In statutory and administrative law, critics see a parallel dynamic: doctrines like the “major questions” framework can operate as tools to avoid deference regimes and to narrow administrative authority without formally overruling the full set of older precedents that enabled broad agency policymaking. [29] The Loper Bright majority insisted that it was not destabilizing everything—prior holdings stand—but the dissent warned that abandoning Chevron “subverts every known principle of stare decisis” and will destabilize thousands of settled constructions. [43]

Defenders of the Court’s approach argue that the perceived “inconsistency” is often a feature of different doctrinal domains: the Court can legitimately treat some precedents as weak (poorly reasoned, unworkable, or inconsistent with the Constitution’s structure) and treat others as settled because they are textually grounded or have structured the legal order in ways the Court finds constitutionally compelled. [44] A further defense is comparative: many legal systems accept that a final court may depart from precedent when it appears right, as long as it articulates principled reasons and is mindful of reliance. [45]

But even under that defense, the core dispute remains: whether the Court’s distribution of overruling—often aligned with the most prominent culture-war issues—and the speed of doctrinal reconfiguration supply enough evidence to undermine the claim that stare decisis is functioning as a neutral, limiting principle rather than as a rhetorical practice invoked when convenient. [46]

Legitimacy and procedural transformation

Casey’s institutional warning—that legitimacy is the Court’s real power, and frequent overruling can overtax public confidence—has taken on new salience because public trust metrics have weakened sharply in the same period that the Court has issued several high-salience reversals. [47] Polling from entity["organization","Gallup","polling organization"] shows a marked decline in public confidence in the Court around the Dobbs era, and entity["organization","Pew Research Center","survey institute"] has similarly reported historically low favorability/trust measures in recent years. [48]

Public legitimacy concerns have been voiced by sitting Justices themselves. entity["people","Elena Kagan","supreme court justice"] warned that the Court risks imperiling legitimacy if people come to see it as imposing personal preferences rather than acting like a court, and she emphasized stability as a core value of law and the danger of giving rights and then taking them away after people have structured their lives around them. [49] In contrast, entity["people","Samuel Alito","supreme court justice"] has criticized legitimacy debates as attacks on the Court’s character and integrity, warning that claims of illegitimacy cross an important line even while acknowledging widespread criticism after Dobbs. [50]

Alongside substantive precedent shifts, critics argue the Court has also normalized procedural practices that intensify instability—especially via the “shadow docket” (emergency orders and summary rulings without full merits briefing and argument). The term “shadow docket” is widely traced to work by entity["people","William Baude","law professor"], and scholars including entity["people","Stephen Vladeck","law professor"] have documented that, since 2017, emergency orders have become more visible and more consequential. [[51]](https://www.judiciary.senate.gov/imo/media/doc/Vladeck testimony1.pdf)

Two abortion-related episodes show how procedural posture can substitute for merits decisions. In the early SB8 litigation, the Court denied emergency relief, and dissents warned that Texas had designed the statute to evade judicial review by delegating enforcement to private parties; the dispute was framed as a procedural gatekeeping fight that nonetheless allowed a major change in real-world access to abortion to persist without conventional merits review. [52] Later, critics argued that such emergency-docket dynamics create a pathway for “effective overruling” or profound legal change without the deliberative features that traditionally accompany doctrinal shifts. [[53]](https://www.judiciary.senate.gov/imo/media/doc/Vladeck testimony1.pdf)

In 2025, emergency-docket controversies expanded beyond abortion. In Trump v. Wilcox (May 2025), a dissent criticized the Court for using the emergency docket in a way that could effectively revise or undermine major structural precedent (including Humphrey’s Executor) without full briefing and argument, and warned explicitly against using emergency procedures to overrule or revise existing law. [54] Reporting and tracking projects note a sharp increase in emergency applications and high policy stakes attached to interim orders, especially in the early months of 2025. [55]

Legitimacy debates also intersect with ethics controversies. After investigative reporting described undisclosed gifts and travel involving entity["people","Clarence Thomas","supreme court justice"], the Court faced intensifying pressure for enforceable ethics standards. [56] The Court adopted a formal Code of Conduct in 2023, describing it largely as a codification of principles the Justices had long regarded as governing conduct; critics noted the absence of external enforcement mechanisms. [57] Separate reporting about politically charged flags associated with January 6 symbolism displayed at entity["people","Samuel Alito","supreme court justice"]’s properties further fueled public conflict over recusal norms and the sufficiency of self-policing. [58]

Comparative perspective and reform arguments

Comparative common-law systems provide a useful lens because they often confront the same core problem: how to allow necessary legal correction while preserving reliability. In the UK, the House of Lords’ 1966 Practice Statement announced that the court would depart from precedent when it appears right to do so—while explicitly warning about the dangers of retrospective disturbance to settled arrangements (contracts, property, fiscal arrangements) and emphasizing special need for certainty in criminal law. [59] In Canada, the Supreme Court has articulated structured exceptions for when lower courts may revisit higher-court precedent and has discussed the “horizontal” question of when it may depart from its own precedents, again emphasizing coherence and principled justification. [60] In Australia, scholarship and judicial commentary similarly reflect that the High Court is not strictly bound by its earlier holdings but frames overruling as exceptional and normatively weighty because of stability and rule-of-law functions. [61]

Historically in the United States, legitimacy crises and reform threats have often followed periods where the Court was perceived as out of step with major political currents. The 1937 “court-packing” plan proposed by entity["politician","Franklin D. Roosevelt","u.s. president"] was framed as a response to the Court’s obstruction of New Deal legislation and triggered a major public and institutional backlash, illustrating how legitimacy disputes can spill into structural reform proposals. [62] Casey explicitly invoked the Lochner and Plessy lines as examples where overruling became comprehensible as a response to changed circumstances—and contrasted those stories with what it treated as the inadequacy of overruling Roe without such changes. [9]

Modern reform proposals typically aim to restore either (a) stability in membership and thus in doctrine, or (b) trust that decisions are constrained by enforceable norms. The Presidential Commission on the Supreme Court (2021) surveyed proposals including term limits, ethics reforms, and structural change (while also documenting the polarized environment in which reforms would be interpreted). [63] Recent policy proposals and commentary frequently highlight 18‑year term limits as a way to regularize appointments and reduce the perceived “war” over individual vacancies, and ethics proposals focus on enforceability (as contrasted with voluntary compliance). [64]

But any legitimacy-restoration strategy faces a basic tension raised by the stare decisis controversy itself: reforms that look like partisan retaliation (court expansion; jurisdiction stripping; other power moves) may aggravate the very perception of politicization they are meant to correct, while softer reforms may not counteract doctrinal instability if the underlying jurisprudential posture remains that broad, long-standing precedents are always vulnerable to a new majority. [65]

Synthesis: what the current approach implies for stability and the rule of law

The modern Supreme Court’s approach represents a departure from traditional stare decisis jurisprudence less because the Court is overruling at all—overruling has always existed—than because of the combination of three features visible in recent years.

First, the Court has shown willingness to reverse or displace precedents that structured wide domains of social life and governance, even where reliance is argued in broad, non-contractual terms (Dobbs; affirmative action; institutional administrative-law frameworks). [66] Second, the Court has increasingly used methodological reframing—history-and-tradition tests; replacement of doctrine like Lemon; administrative “major questions” reasoning; rejection of balancing tests—as a functional mechanism for moving beyond prior regimes, sometimes closer to “stealth reversal” than explicit overruling. [67] Third, the Court’s increased reliance on the emergency docket for high-stakes disputes can make major legal change occur through interim procedural mechanisms that lack the legitimating rituals of full merits litigation. [68]

Whether these moves are “principled correction” or “policy imposition” cannot be resolved by rhetoric alone; it turns on whether the Court’s stated stare decisis factors operate as real constraints across cases (including politically salient ones), and whether its historical and structural methodologies are applied consistently rather than opportunistically. [69] The legitimacy stakes are unusually high because the Court’s authority is ultimately relational—dependent on acceptance—and Casey’s warning about the limits of legitimacy under conditions of perceived vacillation is not merely theoretical in a period of low public confidence and intense polarization. [47]

Finally, the broader sociopolitical environment likely intensifies these dynamics. Political science research on affective polarization and negative partisanship shows that American partisanship increasingly functions as social identity marked by hostility toward the out-group. [[70]](https://calgara.github.io/PolS5310_Spring2021/Iyengar%2C Sood%2C Lelkes - 2012 - Affect%2C Not Ideology A Social Identity Perspective on Polarization.pdf) In such an environment, legal interpretation can become more legible to mass publics as “tribal victory” rather than “neutral constraint,” especially when elite legal networks (including entity["organization","The Federalist Society","legal organization"]) are perceived—accurately or not—as pipelines that align judicial selection with ideological projects. [71] That perception is further strained by ethics controversies, high-profile overturnings, and emergency-docket governance, all of which reduce the institutional distance between ordinary politics and the judiciary in the eyes of many citizens. [72]

[1] [2] https://www.law.cornell.edu/supct/html/90-5721.ZO.html

https://www.law.cornell.edu/supct/html/90-5721.ZO.html

[3] [18] [44] [69] https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf

[4] [5] [6] [9] [10] [14] [36] [47] https://tile.loc.gov/storage-services/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf

https://tile.loc.gov/storage-services/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf

[7] https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-tracker-challenges-trump-administration

https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket-tracker-challenges-trump-administration

[8] [11] [12] [13] [15] [16] [37] [38] [39] [66] https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[17] [30] [31] [46] https://lawreview.law.ucdavis.edu/sites/g/files/dgvnsk15026/files/2025-02/58-3_Hosie.pdf

https://lawreview.law.ucdavis.edu/sites/g/files/dgvnsk15026/files/2025-02/58-3_Hosie.pdf