The Other Way the Supreme Court Is Nullifying Precedent

Jeffrey Fisher

(Originally published by Politico on September 16, 2022) 

Along with overturning major decisions, the court is quietly erecting new barricades on rulings they can’t quite throw out.

The Supreme Court’s recent overruling of Roe v. Wade and other foundational decisions makes clear that key precedents are no longer safe. But as we take account of the court’s last term and look ahead to the next one, it is critical to understand that the aggressive conservative supermajority has also embraced a new, quieter way of annulling other long-established legal rules—a tactic I call barricading precedent. Any assessment of the court’s fidelity to past judicial decisions should include a tally not just of decisions the court overrules but also those it walls off from any future extensions.

(Continue reading the opinion essay on Politico’s page here.)