Now I’ve read the whole thing. Great post for Today. Happy Fourth, James! Thanks for all the doubtlessly tireless work for these in-depth posts. God bless!
"Loving America for what it was does not count. Loving America for what it will be (or could be) does not. The first is the conservative sin against patriotism. The second is the progressive sin."
I'd take this a step further: Reactionaries want to sacrifice America as it is for something it never was; radicals want to sacrifice it for something it never can be.
Discussed in the original article! (I referred to this period as the "Roberts hangover", since Roberts immediately darted left to fill the Kennedy niche when Kennedy left.
Are you referring to the comment I made, then deleted when I realized you had defined "Kennedy Court" to include the 2 years between his tenure and Barret's?
Sarah Isgur in her book "Last Branch Standing" on in her "Advisory Opinions" podcast, describes Roberts, along with Barrett and Kavanaugh, as "institutionalists" operating n an axis different from the conventional "conservative-liberal" axis. She describes SCOTUS in the Barrett era as a "3-3-3 Court".
Oh, so THAT's why it didn't appear in the web console! Yes, I still received an email notification with the original comment, and was replying to that. Sorry!
I think that the problem with your analysis is that while it refutes the contention that the ROBERTS court is more likely to disregard precedent in pursuit of an ideological agenda it presumes that precedent ever stood in the way of any court bent on reaching a particular result. It was always just a make weight argument thrown in by the dissent or a further justification for d decision that was not important enough to change. Said another way. All lower courts are required to obey prior decisions of the Supreme Court but Supreme Court only “follows” precedent when it supports the majority’s opinion.
I'm interested in replicating this with a different source for precedent overturning. Would you mind sharing how you defined the different eras? I'd like to be able to compare the two sources apples to apples.
The eras are defined in the original article, but here they are for clarity:
The Early Court (1789-1835): Until Chief Justice Marshall’s death.
The Taney Court (1836-1864): Best known for the foul Dred Scott decision, and deservedly so.
The Reconstruction Court (1864-1897): A more active Court that used its authority largely to deliberately misread the Reconstruction Amendments, damaging the law in ways that persist to this day.
The Lochner Era (1897-1937): A period of conservative activist judges. In the Lochner decision, they established a “liberty of contract” that allowed the Court to strike down any economic regulation it disliked, from minimum wages to child labor laws. This was a major guarantee of individual liberty, one that many people (including workers) relied on for forty years (although many others opposed it). If anyone tells you that the Supreme Court never rescinded an individual right before Dobbs, teach him about Lochner.
The Post-Lochner Transition (1937-1953): The Court became rapidly more progressive after Lochner fell, undoing many of its precedents.
The Warren Court (1953-1970): A byword for newly “discovered” constitutional rights, judicial reinventions of old rights, and the overdue reanimation of civil rights.
The Burger Court (1970-1986): I think the Warren and Burger courts should be counted together, but some people have the strange idea that Chief Justice Burger or his Court were conservative, so I must count them separately, or those people will think I’m pulling a fast one.
The Rehnquist Court (1987-2005): Reagan and Bush attempted to shift the Court from the hard left toward the American center. Thomas and Scalia debuted their originalist theories at the Supreme Court during this time, but were mostly stuck writing dissents. Progressives still won most3 cases.
The Kennedy Court (2006-2020): After “swing justice” Sandra Day O’Connor retired and was replaced by Justice Alito, a conservative stalwart, Justice Anthony Kennedy became the swing vote on a tied court. Everyone catered to him, so America was governed by his socially liberal/libertarian views. Both progressives and conservatives won important cases during this time.4 Curiously, after Kennedy retired, Chief Justice John Roberts shifted decisively to the left in order to maintain this “balance of wins” for a couple more years.5
The Barrett Court (2020-present): When conservative Justice Barrett replaced progressive Justice Ginsburg, conservatives gained a durable Supreme Court majority for the first time in more than 80 years.
It looks like I counted all of OT 2020-21 as Barrett Court and all of OT 2005-2006 as Kennedy Court for purposes of denominators. I notice that this led me into what looks like an error: I charged Central Virginia Community College v. Katz to the Kennedy Court, but that decision was announced in the very last days of Justice O'Connor's tenure.
I could also share the actual Excel sheet where I did the calculations, but I don't think it would be edifying, since it's just a bunch of subtraction (to determine the age of precedents), addition (to determine number of precedents overturned / sum of precedent-years), and division (for annual averages).
Good luck, and let me know if I can support your project in any way! Obviously I HOPE your findings confirm my conclusions, but I'm interested in the truth no matter what.
How'd you handle when other years overlapped? I tried making it before seeing your reply and went the same way with 2020 and 2005. But is how I handled the overlaps the same as you? (It probably won't matter much though)
| Era | First term | Last term |
|---|---|---|
| Early Court | 1789 (my data source starts 1791) | 1835 |
Serendipitously, there were no overturnings in the years transitioning between Early/Taney, Taney/Reconstruction, Reconstruction/Lochner, or Post-Lochner/Warren, so I just didn't have to make a decision in those cases -- and I didn't!
Shooting from the hip, I guess, if forced to pick a specific date for each, I'd go with:
Taney Court starts the day Taney starts.
Reconstruction Court starts when Salmon P. Chase takes over for Taney.
Lochner Era starts either the date of Lochner, or, if Lochner was partly caused by a change in justices (I don't know) the date that justice joined the court.
Warren Era starts the day Warren starts.
The Lochner/Post-Lochner transition was also easy, because there was only one overturning in 1936-37, and it was Adkins v. Children's Hospital (the fall of Lochner). So I just set January 1, 1937 as the date and didn't worry about it.
Refining that would be slightly trickier. There's a lot of dispute about when exactly the "switch in time that saved nine" occurred, and whether it was even in response to FDR's court-packing scheme, and I'd have to look into it more to be sure, but I suspect I would count all of OT 1936-37 [EDIT: originally typed this as 37-38] as part of the Post-Lochner Transition, or I would count from December 16 1936 forward (when Justice Owen Roberts evidently voted to effectively kill Lochner). Either strikes me as a valid choice on casual consideration.
I don't know, looking at my table at a glance, how I handled the Warren/Burger transition, but it LOOKS like I counted all of OT 1969-70, since Burger became Chief during the summer break between OT 68-69 and 69-70. But they didn't overturn anything (by my source) until early '70, so it comes out equivalent to me just making January 1, 1970 the break point. But I think I actually did look and make sure any overturnings in Fall 1969 were attributed to Burger rather than Warren. I didn't want to be accused of being unfair to Earl Warren.
I appear to have done the same for Rhenquist, who took office in 1986, but I don't charge anything to him until Puerto Rico v. Brandstad in 1987, even though several overturns happened in '86 (presumably before he took over).
Barrett joined the court so close to the start of OT 2020-21 that I honestly don't know which date I picked. It didn't matter in her case.
And we already saw my error with the Rhenquist/Kennedy transition. The last day of that court is the date Sandra Day O'Connor's final vote was published, but I appear to have screwed that up by a week or so.
"Lochner Era starts either the date of Lochner, or, if Lochner was partly caused by a change in justices (I don't know) the date that justice joined the court."
As I understand it, and I thank Jamal Greene's article "The Anticanon" (https://harvardlawreview.org/print/vol-125/the-anticanon/) for some good information on it, "Lochner era" is a bit of a misnomer. The era in question--in which the Supreme Court got into its head the idea of freedom of contract--seems to more properly begin not with Lochner (1905) but with Allgeyer v. Louisiana (1897). It appears the reason Lochner gets so much attention (including being what the time is named after) is because a number of very influential legal writers (most notably Felix Frankfurter) really liked Oliver Wendell Holmes' dissent in the case. If not for that specific dissent, Lochner would probably be assigned no greater importance than the other three cases mentioned when Hugo Black later criticized the "Allgeyer-Lochner-Adair-Coppage constitutional doctrine" in Lincoln Union v. Northwestern Co (1949).
Delightfully, rolling the Lochner Era back to 1897 has no impact on my data, since SCOTUS had no overturns between 1894 and 1913, but it probably makes a difference to @Eric McKee, so is worth noting! (Thanks for the article. I look forward to it.)
RE "Barrett Court overturns precedent specifically on 5-4 or 6-3", Sarah Isghur, who another commentor mentioned, is all over that stuff. I suspect she has an article (or two or three or four or five) about it.
Now I’ve read the whole thing. Great post for Today. Happy Fourth, James! Thanks for all the doubtlessly tireless work for these in-depth posts. God bless!
"Loving America for what it was does not count. Loving America for what it will be (or could be) does not. The first is the conservative sin against patriotism. The second is the progressive sin."
I'd take this a step further: Reactionaries want to sacrifice America as it is for something it never was; radicals want to sacrifice it for something it never can be.
Discussed in the original article! (I referred to this period as the "Roberts hangover", since Roberts immediately darted left to fill the Kennedy niche when Kennedy left.
Are you referring to the comment I made, then deleted when I realized you had defined "Kennedy Court" to include the 2 years between his tenure and Barret's?
Sarah Isgur in her book "Last Branch Standing" on in her "Advisory Opinions" podcast, describes Roberts, along with Barrett and Kavanaugh, as "institutionalists" operating n an axis different from the conventional "conservative-liberal" axis. She describes SCOTUS in the Barrett era as a "3-3-3 Court".
Oh, so THAT's why it didn't appear in the web console! Yes, I still received an email notification with the original comment, and was replying to that. Sorry!
James
I think that the problem with your analysis is that while it refutes the contention that the ROBERTS court is more likely to disregard precedent in pursuit of an ideological agenda it presumes that precedent ever stood in the way of any court bent on reaching a particular result. It was always just a make weight argument thrown in by the dissent or a further justification for d decision that was not important enough to change. Said another way. All lower courts are required to obey prior decisions of the Supreme Court but Supreme Court only “follows” precedent when it supports the majority’s opinion.
I tend to agree!
James,
I'm interested in replicating this with a different source for precedent overturning. Would you mind sharing how you defined the different eras? I'd like to be able to compare the two sources apples to apples.
Oh, you defined it in the previous article. My mistake, should have done a more complete literature review. Disregard my question. :)
TOO LATE. :)
By all means! That's exciting!
The eras are defined in the original article, but here they are for clarity:
The Early Court (1789-1835): Until Chief Justice Marshall’s death.
The Taney Court (1836-1864): Best known for the foul Dred Scott decision, and deservedly so.
The Reconstruction Court (1864-1897): A more active Court that used its authority largely to deliberately misread the Reconstruction Amendments, damaging the law in ways that persist to this day.
The Lochner Era (1897-1937): A period of conservative activist judges. In the Lochner decision, they established a “liberty of contract” that allowed the Court to strike down any economic regulation it disliked, from minimum wages to child labor laws. This was a major guarantee of individual liberty, one that many people (including workers) relied on for forty years (although many others opposed it). If anyone tells you that the Supreme Court never rescinded an individual right before Dobbs, teach him about Lochner.
The Post-Lochner Transition (1937-1953): The Court became rapidly more progressive after Lochner fell, undoing many of its precedents.
The Warren Court (1953-1970): A byword for newly “discovered” constitutional rights, judicial reinventions of old rights, and the overdue reanimation of civil rights.
The Burger Court (1970-1986): I think the Warren and Burger courts should be counted together, but some people have the strange idea that Chief Justice Burger or his Court were conservative, so I must count them separately, or those people will think I’m pulling a fast one.
The Rehnquist Court (1987-2005): Reagan and Bush attempted to shift the Court from the hard left toward the American center. Thomas and Scalia debuted their originalist theories at the Supreme Court during this time, but were mostly stuck writing dissents. Progressives still won most3 cases.
The Kennedy Court (2006-2020): After “swing justice” Sandra Day O’Connor retired and was replaced by Justice Alito, a conservative stalwart, Justice Anthony Kennedy became the swing vote on a tied court. Everyone catered to him, so America was governed by his socially liberal/libertarian views. Both progressives and conservatives won important cases during this time.4 Curiously, after Kennedy retired, Chief Justice John Roberts shifted decisively to the left in order to maintain this “balance of wins” for a couple more years.5
The Barrett Court (2020-present): When conservative Justice Barrett replaced progressive Justice Ginsburg, conservatives gained a durable Supreme Court majority for the first time in more than 80 years.
It looks like I counted all of OT 2020-21 as Barrett Court and all of OT 2005-2006 as Kennedy Court for purposes of denominators. I notice that this led me into what looks like an error: I charged Central Virginia Community College v. Katz to the Kennedy Court, but that decision was announced in the very last days of Justice O'Connor's tenure.
My data sheet also shows where I marked the Court's splits, but with less precision: https://docs.google.com/spreadsheets/d/1-f06l8YM7jK3odxlEqsPUqNywj4oTClUuPjlMJvoaTI/edit?usp=sharing
I could also share the actual Excel sheet where I did the calculations, but I don't think it would be edifying, since it's just a bunch of subtraction (to determine the age of precedents), addition (to determine number of precedents overturned / sum of precedent-years), and division (for annual averages).
Good luck, and let me know if I can support your project in any way! Obviously I HOPE your findings confirm my conclusions, but I'm interested in the truth no matter what.
How'd you handle when other years overlapped? I tried making it before seeing your reply and went the same way with 2020 and 2005. But is how I handled the overlaps the same as you? (It probably won't matter much though)
| Era | First term | Last term |
|---|---|---|
| Early Court | 1789 (my data source starts 1791) | 1835 |
| Taney Court | 1836 | 1863 |
| Reconstruction Court | 1864 | 1896 |
| Lochner Era | 1897 | 1936 |
| Post-Lochner Transition | 1937 | 1952 |
| Warren Court | 1953 | 1968 |
| Burger Court | 1969 | 1985 |
| Rehnquist Court | 1986 | 2005 |
| Kennedy Court | 2006 | 2019 |
| Barrett Court | 2020 | present |
Serendipitously, there were no overturnings in the years transitioning between Early/Taney, Taney/Reconstruction, Reconstruction/Lochner, or Post-Lochner/Warren, so I just didn't have to make a decision in those cases -- and I didn't!
Shooting from the hip, I guess, if forced to pick a specific date for each, I'd go with:
Taney Court starts the day Taney starts.
Reconstruction Court starts when Salmon P. Chase takes over for Taney.
Lochner Era starts either the date of Lochner, or, if Lochner was partly caused by a change in justices (I don't know) the date that justice joined the court.
Warren Era starts the day Warren starts.
The Lochner/Post-Lochner transition was also easy, because there was only one overturning in 1936-37, and it was Adkins v. Children's Hospital (the fall of Lochner). So I just set January 1, 1937 as the date and didn't worry about it.
Refining that would be slightly trickier. There's a lot of dispute about when exactly the "switch in time that saved nine" occurred, and whether it was even in response to FDR's court-packing scheme, and I'd have to look into it more to be sure, but I suspect I would count all of OT 1936-37 [EDIT: originally typed this as 37-38] as part of the Post-Lochner Transition, or I would count from December 16 1936 forward (when Justice Owen Roberts evidently voted to effectively kill Lochner). Either strikes me as a valid choice on casual consideration.
I don't know, looking at my table at a glance, how I handled the Warren/Burger transition, but it LOOKS like I counted all of OT 1969-70, since Burger became Chief during the summer break between OT 68-69 and 69-70. But they didn't overturn anything (by my source) until early '70, so it comes out equivalent to me just making January 1, 1970 the break point. But I think I actually did look and make sure any overturnings in Fall 1969 were attributed to Burger rather than Warren. I didn't want to be accused of being unfair to Earl Warren.
I appear to have done the same for Rhenquist, who took office in 1986, but I don't charge anything to him until Puerto Rico v. Brandstad in 1987, even though several overturns happened in '86 (presumably before he took over).
Barrett joined the court so close to the start of OT 2020-21 that I honestly don't know which date I picked. It didn't matter in her case.
And we already saw my error with the Rhenquist/Kennedy transition. The last day of that court is the date Sandra Day O'Connor's final vote was published, but I appear to have screwed that up by a week or so.
"Lochner Era starts either the date of Lochner, or, if Lochner was partly caused by a change in justices (I don't know) the date that justice joined the court."
As I understand it, and I thank Jamal Greene's article "The Anticanon" (https://harvardlawreview.org/print/vol-125/the-anticanon/) for some good information on it, "Lochner era" is a bit of a misnomer. The era in question--in which the Supreme Court got into its head the idea of freedom of contract--seems to more properly begin not with Lochner (1905) but with Allgeyer v. Louisiana (1897). It appears the reason Lochner gets so much attention (including being what the time is named after) is because a number of very influential legal writers (most notably Felix Frankfurter) really liked Oliver Wendell Holmes' dissent in the case. If not for that specific dissent, Lochner would probably be assigned no greater importance than the other three cases mentioned when Hugo Black later criticized the "Allgeyer-Lochner-Adair-Coppage constitutional doctrine" in Lincoln Union v. Northwestern Co (1949).
Delightfully, rolling the Lochner Era back to 1897 has no impact on my data, since SCOTUS had no overturns between 1894 and 1913, but it probably makes a difference to @Eric McKee, so is worth noting! (Thanks for the article. I look forward to it.)
RE "Barrett Court overturns precedent specifically on 5-4 or 6-3", Sarah Isghur, who another commentor mentioned, is all over that stuff. I suspect she has an article (or two or three or four or five) about it.
You're right! Isgur rejects the whole frame, it seems: https://sutherlandinstitute.org/is-the-supreme-court-as-political-as-we-think-sarah-isgur/
(I've only watched the first 15 minutes of this, but have enjoyed it.)