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Norm Violation by the Lower Courts in the Treatment of Supreme Court Precedent: A Research Framework*

The U.S. Supreme Court rarely overrules its own decisions, overturning fewer than three precedents per term (Brenner and Spaeth, 1995). For the most part, the Court acts instead to preserve the consistency and continuity of the law. However, there are times when the Court formally alters precedent and, in so doing, affirms the decision of a lower court. That is, the Court upholds a lower-court ruling that conflicts with, or even ignores, its past decisions, overruling itself in the process. Such a situation violates two fundamental legal norms. First, as subordinates in the judicial hierarchy, lower-court judges are expected to abide by the decisions of their superior, the Supreme Court, and second, according to the doctrine of stare decisis, the Supreme Court has a duty to follow its own precedents. In this article, we conduct a descriptive analysis of the over-ruling decisions of the Warren, Burger, and Rehnquist courts that affirmed lower-court rulings. A number of questions are relevant. Under what circumstances do lower courts perceive that a marked deviation from Supreme Court precedent is legally and politically safe? Is there evidence that the lower courts attempt to anticipate the high court’s reaction to an alteration in precedent? What role does ideology play in the lower courts’ rulings? We address these questions as we examine these unique instances in which lower courts appear to initiate the alteration of Supreme Court precedent.