[EL] Conservatives, Liberals and Respect for Precedent

[David Adamany]

When Arizona v. Intertribal Council was handed down in mid-June, Rick reported a correspondent's explanation of why the four "liberal" justices joined Justice Scalia'a majority opinion.   That correspondent said that the liberal justices didn't really adhere to the law announced in the majority opinion but rather were engaged in politial maneuvering.  "Liberals don't care about stare decisis, conservtives do," that correspondent said.   I inquired on this blog whether anyone knew of studies to support (or reject) such a view.



For those interested in this kind of analysis, here is an intriguing bit of evidence.  Using a data base of all Rehnquist Court decisions in which one or more justices refer to previous decisions in such terms as "disapproved," "no longer good law," etc., the authors conclude that: "The results could not be more clear.  When the Court votes to overturn liberal precedents, liberals such as Brennan and Marshall insist that the precedents be upheld.  But when conservative precedents are attacked, those liberal justices show no inclination to uphold them. . . . . The situation for conservaives, however, is not so clearcut.  Rehnquist, for example, rarely votes to overturn conservative precedents . . . but is quite willing to overturn liberal precdents .  . .  But Scalia, Kennedy and Thomas defer to neither conservative nor liberal precedents.  Oveall, not one justice on the Rehnquist court excercised deference to precedent by voting to uphold both liberal and conservative precedents."   Jeffery A. Segal, Harold J. Spaeth, Sara C. Bensh, THE SUPREME COURT IN THE AMERICAN POLITICAL SYSTEM, 316 - 318 (2005).



A table at page 317 showing the votes of the fourteen justices who served at any time during Rehnquist's chief justiceship tends to confirm that most tended to vote along ideological lines but that a few "conservative" justices seemed activist in voting to overturn both liberal and conservative precedents.



I feel confident that few on this blog will be surprised by these findings.



David



David Adamany

Laura Carnell Professor of Law
and Political Science, and
Chancellor
1810 Liacouras Walk, Ste 330
Temple University
Philadelphia, PA 19122
(215) 204-9278

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