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Measuring Judicial Activism$
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Stefanie A. Lindquist and Frank B. Cross

Print publication date: 2009

Print ISBN-13: 9780195370850

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195370850.001.0001

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Overruling Supreme Court Precedents

Overruling Supreme Court Precedents

(p.121) seven Overruling Supreme Court Precedents
Measuring Judicial Activism

Stefanie A. Lindquist

Frank B. Cross (Contributor Webpage)

Oxford University Press

Although not traditionally viewed as an element of judicial activism, the oft-quoted phrase “legislating from the bench”—commonly employed in political debates over activism—implies the notion that activist judges make rather than interpret law. Certainly, this concern is most pronounced in situations in which the judiciary overturns existing precedent, since this form of judicial action represents an outright acknowledgment that the earlier decision was incorrectly decided and that the Court, rather than Congress, is the appropriate institution to alter existing legal rules. For these reasons, the chapter addresses the individual justices' votes to overrule existing Supreme Court precedents. Here the chapter finds that several justices are far more likely to vote to overrule precedent explicitly, with Justices Scalia, Thomas, and Kennedy most willing to vote to invalidate an existing Court decision.

Keywords:   stare decisis, precedent, overruling, rule of law, legislating from the bench

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