The Wall Street Journal on Justice Sotomayor, SCOTUS undoing precedent:

Justice Sonia Sotomayor, appearing last week at the University of Louisville’s law school, was asked about eroding confidence in the Supreme Court. “I think my court would probably gather more public support if it went a little more slowly in undoing precedent,” she said, according to the Associated Press. The public doesn’t like it, she added, when the Justices move “too quickly in upheavals.”

We’d like to submit a motion for reconsideration, Your Honor. A partisan media narrative claims that the current Court is overturning precedents in, well, unprecedented fashion. In precincts on the left, this is an article of faith. But it isn’t true, according to an academic database of Supreme Court decisions from 1946 to last summer, available online from the law school at Washington University in St. Louis.

Under Chief Justice Earl Warren (1953-69), the rate of “precedent alteration” averaged 3.1 cases per year. Then came Chief Justice Warren Burger (1969-86), with 3.4 a year. Things slowed down after Ronald Reagan’s elevation of Chief Justice William Rehnquist (1986-2005), with the figure falling to 2.4. How does current management compare? Under Chief Justice John Roberts (2005-present), the High Court has altered 1.6 precedents a year, through the term that ended in 2024.

In seven of his 19 years, the database shows the Roberts Court upending a single precedent, and none at all in four of those terms. Also, not every reversal is a heated national dispute with a hard ideological split. In a 2019 ruling on tribal hunting rights, Herrera v. Wyoming, Justice Neil Gorsuch joined four liberals to repudiate an 1896 precedent.

The current Court has overturned some major precedents, including with the Dobbs ruling in 2022 that ended the constitutional abortion right declared by Roe v. Wade. Yet this hardly fits Justice Sotomayor’s thesis of acting “too quickly.” Roe was decided in 1973, and was one of the most controversial decisions in Supreme Court history, including when the High Court upheld it while rewriting it in Planned Parenthood v. Casey (1992). What would moving “more slowly” mean, with a precedent debated for almost 50 years?

Perhaps there are ways to quibble with the numbers in this database, but law professor Jonathan Adler has written that the Library of Congress’s precedent tracker provides the same conclusion. It’s no secret.

“Evidence tends to refute the notion that the Roberts Court has been any more inclined than prior Courts to overrule precedent,” says a 2023 note in the Harvard Law Review. But maybe Justice Sotomayor doesn’t read that; she’s a Yalie.

The better answer on why polls show declining trust in the Court is that the Justices lately are under relentless ideological attack. It’d help if the people who ought to know better, including those with chambers in the building, would quit feeding the partisan PR campaign.

wsj.com