Legal Sidebari

The Modes of Constitutional Analysis:
Judicial Precedent (Part 4)
December 30, 2021
This Legal Sidebar Post is the fourth in a nine-part series that discusses certain “methods” or “modes”
of analysis that the Supreme Court has employed to determine the meaning of a provision within the
Constitution. (For additional background on this topic and citations to relevant sources, please see CRS
Report R45129, Modes of Constitutional Interpretation)
The Supreme Court’s prior decisions on questions of constitutional law are the most commonly cited
source of the Constitution’s meaning. For most Justices, if not all, judicial precedent provides possible
principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
Although the Court routinely purports to rely upon precedent, it is unclear how often precedent has
actually constrained the Court’s decisions because the Justices have latitude in how broadly or narrowly
they choose to construe their prior decisions.
In some cases, however, a single precedent may play a particularly prominent role in the Court’s
decisionmaking. For example, a plurality of Justices relied on Roe v. Wade as controlling precedent in
their opinion in Planned Parenthood v. Casey. In that case, the plurality reaffirmed Roe’s holding that a
woman has a protected liberty interest in terminating her pregnancy prior to fetal viability, stating that the
essential holding of Roe “should be retained.” Another example of the heightened role that precedent can
play in constitutional interpretation is the Court’s decision in Dickerson v. United States. That case
addressed the constitutionality of a federal statute governing the admissibility of statements made during
police interrogation, a law that functionally would have overruled the Court’s 1966 case Miranda v.
Arizona. In striking down the statute, the majority declined to overrule Miranda, noting that the 1966 case
had “become embedded in routine police practice to the point where the warnings have become part of
our national culture.”
More often, the Court reasons from the logic of several precedents in rendering its decisions. An example
is Arizona State Legislature v. Arizona Independent Redistricting Commission, which held that the voters
of Arizona could remove from the state legislature the authority to redraw the boundaries for legislative
districts and vest that authority in an independent commission. In so holding, the Court examined the
Elections Clause, which states that the “Times, Places, and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof.” The Court determined that
the term “Legislature” encompassed the voters of a state making law through a referendum. In reaching
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this determination, the Court relied on three cases from the early twentieth century to support a more
expansive view of the term “Legislature.” The Court described one of these cases from 1916, Ohio ex rel.
Davis v. Hildebrant, as holding that a state referendum was “part of the legislative power” and could be
“exercised by the people to disapprove the legislation creating congressional districts.”
Proponents of the primacy of precedent as a source of constitutional meaning point to the legitimacy of
decisions that adhere to principles set forth in prior, well-reasoned written opinions. They contend that
following the principle of stare decisis and rendering decisions grounded in earlier cases supports the
Court’s role as a neutral, impartial, and consistent decisionmaker. Reliance on precedent in constitutional
interpretation is said to provide more predictability, consistency, and stability in the law for judges,
legislators, lawyers, and political branches and institutions that rely on the Court’s rulings; prevent the
Court from overruling all but the most misguided decisions; and allow constitutional norms to evolve
slowly over time.
Some argue that judicial overreliance on precedent can be problematic. For one thing, certain precedents
might have been wrongly decided, in which case relying on them merely perpetuates their erroneous
construction of the Constitution. Indeed, critics argue that, if the Court strictly adheres to precedent, once
a precedent has been established on a question of constitutional law, the only way to alter that ruling is to
amend the Constitution. This inflexibility is particularly problematic when those outside the Court begin
to disagree about general background principles underlying a precedent; as such, disagreements arguably
cause that precedent to lose its authority. For example, when precedent offends basic moral principles
(e.g., Plessy v. Ferguson), the power of the Court’s precedent may necessarily be weakened. Other
commentators argue that “consistency,” “predictability,” “stability,” and “neutrality” are not actually
benefits of reliance on precedent, as judges may choose among precedents and, to some extent, interpret
precedents in accordance with their own views in order to overrule them implicitly; to expand them; or to
narrow them. In addition, some proponents of original meaning as a method of constitutional
interpretation object to the use of judicial precedent that conflicts with original meaning, because it favors
the views of the Court over the views of those who ratified the Constitution, thereby allowing mistaken
interpretations of the Constitution to persist.

Author Information

Brandon J. Murrill

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
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