The Decision to Depart (or Not) from Constitutional Precedent

An Empirical Study of the Roberts Court
October
2015
Lee Epstein, William M. Landes & Adam Liptak

Constitutional law casebooks, generations of constitutional lawyers, and the Justices themselves say that the Court is more likely to depart from precedent in constitutional cases than in other types. We test this assumption in cases decided by the Roberts Court and find, at odds with earlier studies, that the data provide inconclusive support for it. Other factors, especially criticism of precedent by lower courts and lawyers, are more consistent and stronger predictors of the Court's decisions to depart from precedent. These findings have interesting implications for lawyering, teaching, and judging in the constitutional law context.

This article appears in the October 2015 Issue: Volume 90, Number 4