In an event last week at the University of Louisville Law School, Justice Sonia Sotomayor stated that the Supreme Court is moving “too quickly in upheavals” and that it would “gather more public support if it went a little more slowly in undoing precedent.” On Tuesday, in a colloquy with the CEO of the Knight Foundation, she built on the theme of being “measured and deliberate and careful” in the Court’s “march with time.” She called herself “an advocate of us moving slowly, and if you’re going to undo precedent, do it in small measures. Let the society absorb the steps. Let them see what the outcome is of what you’re saying” before “tak[ing] the next step and then the next step. . . . We’ve had bad results . . . when we reach more broadly than the parties have argued before us.”
The suggestion that the current Court has been more apt than its predecessors to overturn precedents is entirely inaccurate. As Jonathan Adler noted in a 2023 study, even if we include decisions that depart substantially from precedent without explicitly overruling them, the Roberts Court has altered, on average, 1.7 precedents each year. That is significantly fewer than the other post-World War II courts. The Warren Court substantially altered 3.1 precedents, the Burger Court 3.4 precedents, and the Rehnquist Court 2.4 precedents per term. (The following chart is taken from Adler.)
The fact of the matter is that the “lower approval ratings” of the Roberts Court are the intended consequence of a coordinated attack campaign by Democrats who disagree with the outcomes of key cases. This is all a part of the Left’s fabricated “legitimacy crisis.” And of course, the liberal justices have made clear they would be fine with overturning precedents on major issues including speech, religion, and guns—and to push cultural agendas over the will of elected representatives even when, as in the case of abortion, they entail some of the weakest legal arguments the Court has ever confronted.
Still, since Justice Sotomayor has so recently cast herself as an advocate of moving slowly in her newfound appreciation of the limits of judicial power, we shall see how she votes as an increasing number of liberal litigants ask her to run roughshod over the work of elected officials.