Journal of Social Sciences

The So-Called Moderate Justices on the Rehnquist Court: The Role of Stare Decisis in Salient and Closely-Divided Cases

Paul Douglas Foote

DOI : 10.3844/jssp.2010.186.197

Journal of Social Sciences

Volume 6, Issue 2

Pages 186-197


Problem statement: A major question that has puzzled political scientists is what factors influence the decisions of US Supreme Court justices. Despite 20th Century statutory reforms that have led to a fundamental weakening of institutional cohesion on the Supreme Court, the norm of stare decisis continues to serve as a constraint to moderate decision-makers under certain external conditions. Evaluate voting behavior on the Rehnquist Court to discover which justices are indeed demonstrating moderate behavior. Approach: This research makes a unique contribution by expanding the US Supreme Court Justice-Centered Rehnquist Database (1986-2000) to include two new variables to measure the level of salience in each case. Therefore, allowing researchers to better access the impact of issue salience in closely divided precedent-setting cases. Both the New York Times and Congressional Quarterly indicators are used to gauge case salience. The analysis focuses on the existing academic and law review literature on the role of precedent and issue salience which may place constraints on the Court. The jurisprudential styles of Justices O’Connor, Kennedy, Souter, and White are analyzed to ascertain similar moderate behavior traits. Since the data is binary, the logistic regression method is applied within the parameters of the moderate judicial model to illuminate the degree of moderate behavior. Results: The findings reveal that Justice Kennedy does not neatly fit the moderate judicial model. Instead, O’Connor was the only justice that consistently demonstrated moderate voting behavior. Interestingly, only Justice White was more likely to maintain precedent in cases that were both salient and closely divided. Conclusion: This work helps close the glaring gap in the prevailing literature by developing a political model which predicts the conditions in which moderate justices are likely to uphold or not uphold precedent. In addition, it provides a more accurate assessment of the current relevance of the norm of stare decisis to the Legal Model.


© 2010 Paul Douglas Foote. This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.