Judicial Epochs in Supreme Court History: Sifting Through the Fossil Record for Stitches in Time and Switches in Nine

Abstract

Professor Thomas Merrill has argued that Supreme Court Justices' propensity to engage in cooperative behavior may stem from the stability or volatility of the Court's personnel. When the Court's membership is in flux, he asserts, the Justices tend to behave like players in a one-shot or short-term game. Multiple coalitions flourish, but none dominates and all tend to hedge their doctrinal bets against imminent changes in the Court's personnel. By contrast, when the same nine Justices convene across multiple Terms, the Court tends to reflect the strategy of a repeat game. Dominant coalitions, few in number and stable in composition, feel much freer to fashion doctrinal innovations.

This article subjects Professor Merrill's cooperative behavior hypothesis to a variety of empirical tests. To determine whether long periods of stability in Supreme Court personnel correspond with bold doctrinal development, this article applies three separate tests of legal innovation: (1) the propensity of a Court to render influential decisions during particular Terms, (2) the influence of a Term's work as a whole based on subsequent citations, and (3) the number of overruling decisions rendered during any given Term. These admittedly imperfect tests provide little support for Professor Merrill's hypothesis. If anything, both citations and overrulings suggest that the arrival of new Justices tends to spur rather than retard doctrinal movement.

To the extent that stable membership does enhance the Supreme Court's marginal propensity to cut new doctrinal ground, that tendency apparently imparts less influence than other factors. A preliminary look at the historical record suggests that judicial behavior, like all other complex phenomena, depends on numerous variables whose interdependence eludes easy detection.

Keywords: Supreme Court, Justices, innovation, overruling, citations, empirical, influence, decisions, stability, volatility, Rehnquist,, Fuller