The Problem of ‘Personal Precedents’ of Supreme Court Justices

from NYTs

Supreme Court justices, like most people, like to appear to be consistent. No one wants to be thought to be a flip-flopper, an opportunist or a hypocrite.

That means justices try not to disavow earlier legal views, even ones that appeared in dissents, in opinions they wrote as appeals court judges, in academic work, at their confirmation hearings and elsewhere.

This impulse, which a provocative new article calls “personal precedent,” can be at odds with respect for precedent in the conventional sense.

The force and legitimacy of such personal precedents has seldom been explored, and the rare scholars who have considered it have mostly been critical. “To factor in one’s individual track record on an issue” in decisions on whether to overrule actual precedents “presents an example of political behavior,” Allison Orr Larsen, a law professor at William & Mary, wrote in a 2008 article.

More here.

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