This book was an interesting one to review. Couched as a casebook, Constitutional Precedent in US Supreme Court Reasoning in many ways does feel like a casebook. The vast majority of the book consists of excerpts of U.S. Supreme Court cases, organized chronologically, with questions about themes, comparisons between cases, and general reflection questions peppered among groups of cases. Indeed, the author himself states that “[t]his is a casebook that examines the role of constitutional precedent in U.S. Supreme Court reasoning” (p. 21). At the same time, however, the book has a very specific purpose and goal as reflected in the cases chosen and the introductions provided to the cases. The author selected only cases in which the U.S. Supreme Court overturned constitutional precedent. He uses those cases as vehicles to examine how the Supreme Court approaches overturning precedent, to both generally teach students about precedent and explore criticisms that the Court overturns cases for political rather than legal reasons.
The most interesting part of the book surprisingly occurred long before its writing—that is, the approach the author took in identifying the cases that would be included in his high-level empirical analysis at the beginning of the book and in the excerpts that fill its bulk. As Mr. Schultz points out, the U.S. Supreme Court issued 26,544 cases in its terms spanning 1788 to 2020, and determining whether a case has been overruled can be tricky (p. 22). So, Mr. Schultz relies on a 2018 Congressional Research Service report that used—at least to a research librarian—a rather brute-force approach to identify relevant Supreme Court cases, by searching for the word “overrule” in various sections of the opinions and editorial content;Footnote 1 Mr. Schultz then updates the search to 2020. From the results of this search, he produced several tables that quantify those opinions, breaking them down by Chief Justice and showing the percentage of overrulings that occurred within each Chief Justice's tenure. Finally, before diving into the meat of the book, Mr. Schultz provides a list of questions to consider as the reader goes through the cases in the book, followed by questions that focus primarily on finding patterns and generally understanding how the Supreme Court overturns precedent.
Mr. Schultz divides the Court into five eras: the Jay to Vinson Courts (which covers the time period 1789 to 1953, during which 36 opinions overturned constitutional precedent), and then by each of the remaining Chief Justices up to the 2020 term: Warren (32 opinions), Burger (32 opinions), Rehnquist (30 opinions), and Roberts (15 opinions). The main substance of the book is organized chronologically and follows the same pattern: the author introduces the era, briefly reviews the major opinions that were overruled, and poses a series of questions to the reader. Then, several excerpts (focused on the part of the opinion that overturned constitutional precedent) flesh out the remainder of each chapter.Footnote 2 Rather jarringly, the book simply ends with a Roberts opinion (June Medical Services v. Russo, 140 S. Ct. 2103 (2020)), moving directly into the index without a conclusion or final remarks.
The most interesting of the introductions to the eras is that for the Rehnquist Court, in which the author speculates that the Supreme Court “almost seems to be seeking a theory of precedent” in the language it uses when it overturns constitutional decisions, before exploring possible reasons for this shift (p. 129). The discussion harkens back to the author's very early mention of the concept of “super-precedent,” decisions so foundational that they “could or should not be overruled” (p. 2). Perhaps it is because Roe v. Wade is mentioned as an example of super-precedent, or perhaps it is the timing of the book, which makes the discussion feel particularly poignant; published in early 2022, the book includes references to Amy Coney Barrett but not to Ketanji Brown Jackson. And as I write this review in early June 2022, we have seen the leaked draft opinion that could overturn Roe v. Wade but not the final opinion. Simply because of the timing of its publication, the book lands oddly, at once instantly outdated and incredibly relevant.
Overall, I'm not sure where to place this book and how to recommend it. It is advertised as a casebook, and it primarily is one, which places it squarely within the academic law librarian wheelhouse. Further placing it within the curriculum of a law school is more difficult. It seems too high-level for either a constitutional law or federalism class—perhaps a class focused solely on the Supreme Court, its decisions, and its workings? Indeed, other than certain academic law libraries or the U.S. Supreme Court library itself, few libraries would likely find a place for this book in their collections. Those who do add it will find it a concise and efficient way to view cases in which the Supreme Court has overturned itself on constitutional grounds and a way to start a conversation on Supreme Court precedent.
