Indeed, there have been only five occasions on which the Supreme Court overruled one of its decisions without an intervening change in its membership, according to a tally by Michael J. Gerhardt, a law professor at the University of North Carolina.
“The slow rate at which seats turn over itself encourages continuity in case law,” Justice Barrett wrote in a 2013 law review article before she joined the court. “Justices do change their minds, but overruling is more likely when fresh eyes see a case.”
A contrary view was expressed in a 2008 book by Richard A. Posner, a prominent federal appeals court judge who retired in 2017. “If changing judges changes the law,” he wrote, “it is not even clear what law is.”
In an interview, Professor Re said that “institutional precedent substantially depends on and is sometimes checked by a different kind of precedent, personal precedent, that’s more fundamental and that has good features and bad features and that we have to manage.”
“You’ve got to reckon with it,” Professor Re said of personal precedent. “You can’t wish it away.”
Professor Larsen, while praising Professor Re’s article as sophisticated and measured, said that “he undersells the consequences of personal precedents for the court as an institution.”
“The endgame,” she said, “is an even more polarized Supreme Court with very little room for consensus and common ground.”