Before 2019, the court had not used the procedure for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas at Austin. Since then, he found, the court has used it 19 times.
The court has been using another kind of shortcut to enhance its power, as two law professors — Lisa Tucker of Drexel University and Stefanie A. Lindquist of Arizona State University — demonstrated in a recent guest essay. The court has been, they wrote, “increasingly setting aside legally significant decisions from the lower courts as if they had never happened, invalidating them in brief procedural orders.”
Yet another study, from Tejas Narechania, a law professor at the University of California, Berkeley, examined the cases selected by the justices for full-blown review on the merits.
“The Roberts court, more than any other court in history, uses its docket-setting discretion to select cases that allow it to revisit and overrule precedent,” Professor Narechania found in the study, which will be published in the St. Louis University Law Journal and built on an earlier one in the Columbia Law Review.
In September, in remarks at a judicial conference, Chief Justice Roberts insisted on the court’s primacy.
“You don’t want the political branches telling you what the law is,” he said, echoing Chief Justice John Marshall’s famous statement in Marbury v. Madison, the foundational 1803 decision: “It is emphatically the province and duty of the judicial branch to say what the law is.”
The statement is popular with the current court. “Over half of the total number of majority or concurring opinions in Supreme Court history to have quoted this language from Marbury,” Professors Brown and Epstein wrote, “have been penned by the Roberts court.”
Adam Liptak
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