Stare Indecisis: The Alteration of Precedent on the Supreme Court, 1946–1992

166 Pages·1995·2.13 MB·English

by  Saul Brenner

Although the concept of precedent is basic to the operation of the legal system,
there has not yet been a full-length empirical study of why U.S. Supreme Court
justices have chosen to alter precedent. This book attempts to fill this gap by
analyzing those decisions of the Vinson, Warren, and Burger Courts, as well as
the first six terms of the Rehnquist Court- a span of 47 years (1946-1992) - that
formally altered precedent. The authors summarize previous studies of precedent
and the Court, assess the conference voting of justices, and compile a list of
overruling and overruled cases. Additionally, the authors draw a distinction
between personal and institutional stare decisis. By using the attitudinal model of
Supreme Court decision making, which is normally seen as antithetical to the
legal model of voting, the authors find that it is the individual justices' ideologies
which explain their voting behavior.

STARE INDECISIS

STARE INDECISIS
THE ALTERATION OF PRECEDENT ON THE
SUPREME COURT, 1946-1992
SAUL BRENNER
University of North Carolina, Charlotte
HAROLD J. SPAETH
Michigan State University
CAMBRIDGE
UNIVERSITY PRESS
Published by the Press Syndicate of the University of Cambridge
The Pitt Building, Trumpington Street, Cambridge CB2 1RP
40 West 20th Street, New York, NY 10011-4211, USA
10 Stamford Road, Oakleigh, Melbourne 3166, Australia
© Cambridge University Press 1995
First published 1995
Library of Congress Cataloging-in-Publication Data
Brenner, Saul, 1932-
Stare indecisis : the alteration of precedent on the Supreme
Court, 1946-1992 / Saul Brenner, Harold J. Spaeth.
p. cm.
Includes index.
ISBN 0-521-45188-4
1. Stare decisis - United States. 2. Judicial review - United
States. 3. Judges - United States - Attitudes. I. Spaeth, Harold J.
KF429.S68 1994
347.73'12-dc20
[347.30712] 94-33753
CIP
A catalog record for this book is available from the British Library.
ISBN 0-521-45188-4 Hardback
Transferred to digital printing 2003
For Martha - for sharing my joys and pains
For David, Daniel, and my sister Deena - for the great pleasure
you gave me seeing you grow from birth to adulthood
Saul Brenner
For Mary Kay - who is truly Number 1, except in Latin
Harold J. Spaeth

Contents
List of tables and figure page ix
Preface xi
1 INTRODUCTION 1
Justification for stare decisis 2
Stare decisis applied: Payne v. Tennessee 6
Conclusion 9
2 A SURVEY OF THE EMPIRICAL LITERATURE 10
Ulmer's study 10
Schmidhauser's study 13
Danelski's study 15
Banks's study 16
The Epstein et al. study 16
3 A LIST OF CASES 18
Criteria for determining the alteration of precedent 19
Criteria for ascertaining the salience of the overruled and
overruling decisions 23
Precedents altered by the Court 26
Conclusion 28
4 SOME CHARACTERISTICS OF THE OVERRULING
AND OVERRULED CASES 29
The ages of the overruled precedents 29
The importance of the overruling and overruled cases 33
The bases on which the Court alters precedent 35
Opinion assignment in the overruling cases 37
The number and kinds of opinions in the overruling and
overruled cases 43
Coalition size in the overruling and overruled cases 45
Conclusion 47
5 THE CONFERENCE VOTES 49
The vote to grant or deny cert 50