This Essay considers methods by which a Supreme
Court Justice inclined to weaken precedent may do so
without explicitly overruling cases. Adding to the
literature examining "stealth overruling" and the
dynamics of multi-judge courts, it examines instances
from the first five years of the Roberts Court where Chief
Justice Roberts acted in a way consistent with that of a
judge who strategically situates himself among his
colleagues so as to erode precedent while appearing to
uphold it. The Essay does not speculate that the Roberts
Court, or Chief Justice Roberts himself, is any more
inclined than past Courts or Justices to overrule
precedent, whether forthrightly or by engaging in strategic
positioning that enables overruling by stealth. However, it
does suggest that he has employed several methods of
implicitly weakening precedents short of explicitly
overruling them. These examples demonstrate that Chief
Justice Roberts knows how to engage in stealth overruling
when he wants to, and how to make those moves consistent
with a formal commitment to judicial humility.
After providing these examples, the Essay then
illustrates the limitations of such a strategy by examining
the Court's two recent decisions on taxpayer standing to
challenge alleged Establishment Clause violations. The
Essay concludes by offering some tentative observations
about the intersection of stealth overruling and the
dynamics of multi-judge courts and by suggesting areas
for further study.
Araiza, William D.
"Playing Well with Others-But Still Winning: Chief Justice Roberts, Precedent, and the Possibilities of a Multi-Member Court,"
Georgia Law Review: Vol. 46:
4, Article 6.
Available at: https://digitalcommons.law.uga.edu/glr/vol46/iss4/6