Reversals of Precedent and Judicial Policy-Making: How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change

This article analyzes if Justice Marshall is correct in castigating the Rehnquist Court and asserting that it is destroying the rule of law through its stare decisis jurisprudence. It concludes that Justice Marshall is only partially correct. While the ideological direction of its jurisprudence has shifted to the right, the Court’s behavior in reversing itself is normal and does not endanger the Court’s legitimacy or its faithful adherence to law. A fair assessment of the Rehnquist Court’s precedent cases indicates that they are reversals which were decided in times of natural court instability and rapid membership change.

As a result, the Rehnquist Court’s behavior is not that unusual because it is merely re-examining precedent in periods of constitutional “flux” and legal policy change.