The Supreme Court keeps overturning precedent. It swears that it’s not

By John Fritze, CNN

(CNN) — As the Supreme Court was barreling toward the final weeks of its term last year, Chief Justice John Roberts made a rare public appearance to defend his colleagues from criticism that they were all too eager to kick decades-old precedent to the curb.

Still bruising from anger on the left over the court’s monumental decision three years earlier to overturn Roe v. Wade, Roberts rattled off a series of stats underscoring that his court — the Roberts court — had taken aim at far fewer precedents than any of its modern predecessors, an average of less than two “overrulings” each year.

“I think people have a misunderstanding about how much the current court is overruling precedent,” Roberts told an audience at Georgetown University Law Center.

But just 10 days after he walked offstage, the Supreme Court let stand President Donald Trump’s firing of two senior labor officials despite a 1935 precedent known as Humphrey’s Executor that for decades has protected the leaders of independent agencies from dismissal by a president without cause.

Critics of the Supreme Court’s blockbuster decision Wednesday gutting a key provision of the Voting Rights Act of 1965 and voiding a Louisiana congressional map say the court did the same thing: effectively overturned decades-old precedent while not explicitly saying it was doing so.

“The upshot is that the majority, without any good reason, has overturned Congress’s studied determination — along with this court’s precedents upholding it — about how to rectify racial inequalities in electoral politics,” Justice Elena Kagan wrote in a dissent for the three liberal justices.

The numbers Roberts cited were accurate, allowing him to argue the court is moving deliberately rather than leveling past cases. But those numbers don’t account for instances in which the court has pummeled a precedent without explicitly killing it. In just the past few years, the conservative majority has also veered from precedents involving religious freedom.

“To me, Callais is the latest example of a ruling from the Roberts court that, in the same breath, largely neuters a precedent without formally overruling it,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center, referring to Wednesday’s case by its title, Louisiana v. Callais.

The distinction between formally and practically overturning precedents is important, Vladeck said.

“When only the lawyers understand what is and isn’t left of a prior decision, that makes it much harder to build the case for why the court, Congress or any other actor should respond.”

Killing it softly

Both conservative and liberal justices ostensibly frown on overturning precedent because it can undermine stability in the law and can make the court appear political, willing to shift views based on which justices are sitting on the bench.

In the voting rights case on Wednesday, Justice Samuel Alito, the conservative justice who wrote the court’s opinion, vigorously pushed back on Kagan.

In its 6-3 ruling, the first merits decision of the year to cleanly divide the conservative and liberal blocs, the court said voters claiming racial discrimination in redistricting must now demonstrate a “strong inference” that lawmakers intentionally redrew district boundaries to disadvantage minority voters.

But just three years ago, in a case involving Alabama’s congressional map called Allen v. Milligan, the Supreme Court largely rejected that same argument.

“Contrary to the dissent’s assertion, we have not overruled Allen,” Alito wrote, referring to the Alabama decision from 2023.

Alito said the court in Allen “adjudicated the case based on the parties’ arguments.” The state’s argument was essentially that it had drawn a map that resulted in only one majority Black district without considering race at all. How could that map be discriminatory, Alabama asked, if lawmakers never considered race?

On a 5-4 vote, the court rejected that idea and adhered instead to a 1982 revision of the Voting Rights Act that permitted groups to bring those claims based on discriminatory effects of a redistricting. In other words, it didn’t matter whether lawmakers intended to discriminate if the new district effectively deprived Black voters of an equal voice in the election.

“As this court has long recognized — and as all members of this court today agree — the text of §2 establishes an effects test, not an intent test,” Justice Brett Kavanaugh wrote in a concurring opinion in Allen.

But in Wednesday’s majority opinion, joined by both Kavanaugh and Roberts, Alito said the law applies “only when the evidence supports a strong inference that the state intentionally drew its districts to afford minority voters less opportunity because of their race.”

“The court can dramatically rewrite precedents, and has, without formally overruling them,” Richard Pildes, a law professor at New York University and an expert on election law, told CNN.

A law school colleague, he noted, coined a phrase for the phenomenon: “stealth overrulings.”

“Determining whether the court has done this more in certain periods than others can be difficult,” Pildes said. “But in Callais, there’s no question the court has completely rewritten the framework prior cases had established for interpreting the VRA.”

Making it clear

When the Supreme Court’s conservative majority in 2022 overturned Roe v. Wade, the 1973 decision that established a constitutional right to abortion, it said so explicitly in the first pages of its opinion.

“Roe was egregiously wrong from the start,” Alito wrote.

It was equally clear two years later, when the court overturned Chevron v. Natural Resources Defense Council, a 1984 decision that empowered federal agencies to interpret vague laws and that had become a target for legal conservatives.

“Chevron,” Roberts wrote in that opinion, “is overruled.”

But veering from precedent — sometimes in a way that leaves it alive but on life support — is more common and less clear. Rulings that explicitly overturn a precedent occurred in only 4% of the 558 cases studied from 2005 to 2013 in which advocates targeted a prior decision, according to data collected by Lee Epstein, a law professor and political scientist at Washington University in St. Louis.

But departures, Epstein said, occurred in about 28% of those cases.

The Supreme Court in late April agreed to review a Colorado law that requires preschools receiving taxpayer money to enroll children of same-sex couples — setting up an important First Amendment showdown later this year that pits religious rights against LGBTQ families.

In granting the case, the justices specifically declined to take on a question about whether they should overturn a key 1990 precedent, Employment Division v. Smith, that religious groups feel gives the government too much leeway to infringe on religion. One reading of the court’s decision to brush aside that question is that a majority of justices have not coalesced around what to replace Smith with. Another is that the precedent has already been stripped of so much of its bite over the past decade that there’s little point.

The justices are confronting a similar situation as they review Trump’s push to fire the leaders at independent agencies such as the Federal Trade Commission. During oral arguments in December, a majority of justices signaled they would side with Trump, despite the 1935 precedent. During his argument to the court in December, Solicitor General D. John Sauer noted the court had already undermined Humphrey’s in a series of other cases challenging that notion of independent agencies like the Consumer Financial Protection Bureau.

“The court has repudiated Humphrey’s reasoning and confined it to its facts,” Sauer told the justices.

In other words, whether or not the court explicitly overrules Humphrey’s Executor this year may have limited impact. The precedent had already been hobbled.

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