Warren court precedents in the Rehnquist court.

• Author: Cross, Frank B.
• Position: Symposium: The Rehnquist Court in Empirical and Statistical Retrospective

This research empirically examines the use of particular Warren Court decisions as precedents in the Rehnquist Court. Analysis of precedent citation is not widely used but offers insight into judicial decisionmaking and the materiality of the Court's rulings. Our prior research has shown that the Rehnquist Court's citation practices appeared to reduce the coherence of the Supreme Court's network of precedents. (1) In this article we take a finer grained look at the Court's use of various Warren Court opinions.

We begin by analyzing the quantitative study of precedent citation as an analytical measure. Although the tool has some limitations, there is ample reason to believe that it can provide important insights into judicial decisions. Our analysis includes a sample of Warren Court decisions and examines their comparative citation patterns in the Warren, Burger, and Rehnquist Courts. We then apply a model that allows for the aging of precedents and find that the Rehnquist Court has significantly reduced the vitality of, or depreciated the capital of the Warren Court opinions that we studied. This effect was not a uniform one, and the magnitude of the depreciation varied according to which Warren Court Justice authored the opinion to be cited as precedent.

1. PRECEDENT AS A TOOL OF ANALYSIS

   The study of use of precedent offers a valuable tool for analyzing judicial decisionmaking. Traditionally, quantitative empirical analysis of the courts has focused only on the apparent binary ideological outcome of the decision (liberal or conservative), without respect to the content of the opinion or any other scale for the decision that could capture its nature. (2) Yet it is the content of the opinion that is significant, especially for Supreme Court decisions. The outcome of such a decision affects only the parties, but the opinion can influence hundreds or thousands of future cases brought on similar facts. While one might assume that a liberal outcome would set a liberal precedent, this is not necessarily the case, and the binary outcome coding cannot measure whether a particular opinion is moderately liberal (or conservative) or more extremely ideological. (3) The quantitative study of precedent can provide some insight into the content of opinions, as precedents are to some degree the "currency" of the judicial opinion. "[T]he judiciary's most important policy output [is] the precedents set by court opinions." (4) However, the meaning of a precedent over time is not constant but is an "iterative process" in which the Court applies and modifies its meaning. (5)

   The quantitative analysis of precedent has seen only limited use, though, perhaps because the accumulation of data is quite time-consuming. (6) Recently, though, data have become available on the network of citations within the Supreme Court. (7) This data enables a direct study of precedent citation. Studies using this network data have begun to emerge. Researchers have used this network data to identify the most cited cases over the Court's history (8) and changes in relative importance of types of cases over time. (9) We have examined the effect of the Rehnquist Court on the coherence of the overall network and the determinants of network cohesion. (10) The remainder of this section discusses the usefulness of analyzing precedent in judicial decisionmaking.

   1. LIMITATIONS OF PRECEDENT AS A TOOL OF ANALYSIS

      Before commencing our analysis of the Rehnquist Court's use of Warren Court precedent, it is important to add some caveats on the reliance on precedent as a tool for measuring judicial decisionmaking. First, precedents are used in very different ways. An opinion may rely directly upon a precedent and cite it as governing authority. In this usage, the precedent has great importance. Alternatively, a decision may cite a precedent only in passing, such as in a string citation. In this usage, the precedent may carry relatively little weight in determining the decision. Simply counting of precedents does not measure this distinction. Indeed, some realists suggest that precedent simply serves as a mask for ideological decisionmaking and is irrelevant to the Court's decisions.

      In addition, precedent may be used in a negative manner that serves to undermine its strength. Most dramatically, the Court may overrule a precedent and virtually eliminate its authority, though this requires a citation of the overruled opinion. Even absent an overruling, the Court may significantly under mine the authority of an existing opinion. (11) A more limited negative treatment might involve the distinguishing of a precedent. In this usage, a Court would explain why a precedent does not govern the facts of the instant case. While such distinguishing may be perfectly appropriate, because the precedent was inapplicable to the facts, the approach may also be used to undermine the precedent, limiting it to its facts and narrowing its future value.

      The use of a precedent in a Court decision may also be unavoidable because of its obvious relevance to the case. It is relatively common for the parties for both sides of a case to cite many of the same precedents in their briefs. This signals that the parties consider this precedent to be of unavoidable relevance for the Court. Similarly, one often finds both the majority opinion and dissenting opinions citing the same precedent, which indicates that its ability to govern the Court's decision was somewhat limited. Nevertheless, there remains some "decisional leeway in determining whether a precedent governs a case." (12)

      The viability of precedent will also depend on the cases that come before the Court. An opinion on the dormant commerce clause, for example, will receive fewer citations before a Court that chooses to take for review fewer cases in this issue area. Conversely, if the Court chooses to accept for review more cases in a particular area of the law, precedents on that area will be cited more often. This limitation is not so severe, however, because of the Court's docket control. For example, a Court's decision to take certiorari on more Eleventh Amendment cases, for example, will be meaningful. If the failure to cite a prior precedent is due to denial of certiorari on relevant applications of that precedent, this decision is also a meaningful one.

      Another influence on the Court's use of past precedents will be the simple number of cases that it accepts for review. A Court that decides more cases will inevitably cite past precedents more often. The Rehnquist Court has dramatically reduced the Court's caseload, at least as compared with other recent Courts. Consequently, one would expect it to cite fewer precedents in toto than did those other Courts, unless it dramatically increased the per-case citations in its opinions. The outcome of this effect will be addressed below, as it explains the use of Warren Court precedents in the Rehnquist Court.

   2. SURVIVING VIRTUES OF PRECEDENT AS A TOOL OF ANALYSIS

      Notwithstanding the...