This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive objectives, the Court is far more willing to overturn precedent and embrace rule-like precedent. In contrast, when there is not a dominant voting block, the Court will either rule narrowly so as to keep its options open or issue seemingly broad rulings that are in tension with, but do not overrule, the important precedents of past Courts. By highlighting the profoundly important role of ideological cohesion among the Justices, this Article also offers a commentary on the models that political scientists use to describe judicial decisionmaking. Unlike political science models which focus on the desire of individual Justices to pursue favored policy outcomes, this Article suggests that the key variable in understanding Supreme Court policymaking is the presence or absence of five or more ideologically simpatico Justices at a particular moment in time. Finally, this Article speculates on the future of precedent on the Roberts Court. Noting that the Roberts Court lacks a dominant voting block, this Article suggests that the Roberts Court is unlikely to overrule significant precedent or issue significant rule-like decisions (at least until a new President is able to use the appointment power to create a dominant voting block).
86 North Carolina Law Review 1399-1442 (2008)
Devins, Neal, "Ideological Cohesion and Precedent (Or Why the Court Only Cares About Precedent When Most Justices Agree With Each Other)" (2008). Faculty Publications. 31.