The Evolution of Precedent and Partisanship on the Roberts Court

Abstract

The Roberts Court’s conservative supermajority has increased public fear that the Supreme Court is a partisan institution, with justices substituting the honest interpretation of the law with the maximization of their ideological goals. Few studies have evaluated the link between ideology and the Supreme Court’s interpretation of precedent. Even fewer studies have evaluated this link by considering the Supreme Court’s majority opinions instead of the votes of its justices, and no study has yet focused on the Roberts Court. This thesis aims to answer the central research question: How has the Roberts Court’s conservatism affected its interpretation–or “treatment”–of precedent? To answer this question, I develop a novel dataset consisting of the Burger, Rehnquist, and Roberts Courts’ treatment of all Supreme Court decisions since the 1953 term. This treatment may be either positive or negative. For example, the Roberts Court may follow a past precedent, or it may criticize it. I also use a new approach to studying the role of ideology in the treatment of precedent by separately examining the Court’s interpretation of more liberal and more conservative past precedents. Using logistic regression models, I test the effect of ideological distance–roughly how much more conservative the Supreme Court is than the past precedent it is interpreting–on the negative treatment of precedents. I find that there is a positive and statistically significant relationship between the Roberts Court’s negative treatment of more liberal past precedent and ideological distance. Interestingly, ideological distance has no effect on the treatment of more conservative precedents, suggesting that the Roberts Court is reluctant to negatively interpret more conservative rulings. I find mixed evidence that the Roberts Court is more ideological in its interpretation of precedent compared to the Burger and Rehnquist Courts. This thesis lends support to the public’s fear of partisanship on the Roberts Court and raises questions about the existing scholarly approach of studying the treatment of more liberal and more conservative precedents identically. Through its novel dataset, this thesis also enables the future study of the Roberts Court.