How the Supreme Court has quietly overturned precedent : NPR

Legal scholar Adam Feldman tells NPR’s Ayesha Rascoe how the Supreme Court sometimes overturns precedent without explicitly calling an earlier decision invalid.

AYESHA RASCOE, HOST:

The beginning of summer marks the end of the Supreme Court’s term and the release of some of the term’s biggest decisions. One of those has legal experts expecting another break with precedent. Trump v. Slaughter deals with the president’s ability to remove executive officers, like a federal trade commissioner. A decision in favor of the Trump side of that coin would overturn a case from the 1930s decided unanimously. Adam Feldman writes for the blog Empirical SCOTUS, and he joins us now. Welcome to the program.

ADAM FELDMAN: Oh, thanks for having me.

RASCOE: So that case from the ’30s is Humphrey’s Executor v. United States. Are you expecting it to be overturned, and how big of a deal would that be?

FELDMAN: Well, I think there’s a good chance that it will be overturned. Obviously, nothing is guaranteed in advance, but the Supreme Court’s been moving in the direction of overturning it.

RASCOE: And this would basically give the president more authorities over these federal agencies, these independent commissions.

FELDMAN: That’s correct.

RASCOE: Is this current court an outlier in its willingness to overturn precedent?

FELDMAN: No. The Supreme Court – if we actually look at the trend over time, the current court’s pretty consistent. I will say, though, that presidential power over really the last decade and change has increased pretty dramatically through the Supreme Court’s decision making. Empowering the president definitely seems like something on the Supreme Court’s agenda.

RASCOE: Is this court maybe moving in a more plainly partisan way than prior courts?

FELDMAN: So this Supreme Court has a 6-3 conservative majority, and that really hasn’t been the case historically, possibly ever. But when you have that kind of majority that clearly moves in a similar direction in cases dealing with civil liberties, it empowers the Supreme Court to do things now relative to what they could do in the past.

RASCOE: You write that this Supreme Court, on a number of issues, has taken many paths to erode and abandon precedent over time, even without ever saying they’re doing it. Can you give us a little more detail on what you’re seeing?

FELDMAN: Well, one area in particular are cases dealing with religious liberty. One example is the case of Lemon v. Kurtzman, which was a decision that was made in the ’70s that deals with religious entanglement in secular context – in this school context in particular – where it essentially said that the Supreme Court wouldn’t allow religious entities to get public funds in certain circumstances. But the Supreme Court has been cutting back on Lemon since that era, and so even though the Supreme Court never explicitly said that Lemon is overruled, it did so in practice by providing really no context where Lemon still applies.

RASCOE: Death by a thousand cuts.

FELDMAN: Yes, absolutely. Death by a thousand cuts.

RASCOE: Well, how do lower courts follow Supreme Court precedent if it’s being eroded?

FELDMAN: So it’s almost a chess game, where there’s some discretion in the Courts of Appeals when there isn’t something explicitly on the books. So the Supreme Court could cut back and keep doing so. Circuit courts could look for workarounds. In the opposite direction, a circuit court could keep cutting back on it if the Supreme Court hasn’t explicitly said that it applies in certain circumstances. So really, there’s sometimes a fair amount of wiggle room, depending on what the Supreme Court says for these intermediate appellate courts to still maneuver.

RASCOE: Well, when you talk about this erosion of precedents without explicitly saying it, do you see that as a bad thing or a good thing or just the way the law works now?

FELDMAN: I think the Supreme Court is actually weighing a few different things when it’s making these types of decisions, most prominently the legitimacy of its decision making and its ability to create stability in law, which is something that comes up again and again in its decisions. So if it just constantly overturned its past decisions, lower courts and the public in general wouldn’t really know what the law is to follow. It wouldn’t have a clear guide. That’s been a prominent reason why the Supreme Court, even when the personnel changes and where the justices may not agree with the decisions in the past, don’t always explicitly overrule prior cases and might prefer to cut back against the power of these decisions and then really focus their energy on things they feel are clearly wrong and need to be overturned.

RASCOE: That’s Adam Feldman. He writes for the blog Empirical SCOTUS. Thank you so much for joining us.

FELDMAN: Thanks for having me.

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