Judicial supremacy versus constitutional supremacy

[Frank Cross]

Judges almost never switch their votes to the new precedent.  They continue
dissenting.  There are at least two strong empirical studies demonstrating
this
effect.


At 01:39 PM 3/20/2001 -0500, you wrote:
>Isn't it a little pejorative to characterize as "switch[ing] their votes"
>the judges' acceptance as binding of a decision to which they originally
>dissented?  Isn't that exactly how stare decisis is supposed to work?  Of
>course under each judge's view of stare decisis law there may be some
>decisions that continually warrant overruling, but that has to be
>exceptional in order for us to accept the general notion of horizontally
>binding precedent.
>
>John Rogers
>
>At 12:04 PM 3/20/01 -0600, you wrote:
>>To add one more variation to the mix, consider the Illinois Supreme Court
>>decision in People v. Cornelius Lewis (1979). In a prior case, the court
>>upheld the Illinois death penalty statute by a vote of 4-3, with the three
>>dissenters arguing the statute violated the state and federal
>>constitutions. When Lewis's case came before the court, the court's
>>composition had changed, so that one of the original majority had been
>>replaced by a fourth person believing that the statute was
>>unconstitutional. Nevertheless, the original three now switched their votes
>>and voted to uphold the statute, on the stated grounds that though they
>>continued to believe the statute was unconstitutional, they were now bound
>>to uphold it by stare decisis.
>>
>>Susan Bandes
>>
>>
>>At 09:46 AM 3/20/01 -0700, you wrote:
>>>How does this differ from the practice of Justices Brennan and Marshall of
>>>dissenting in every death penalty case on the ground that (their view of)
>>>the Constitution, and not the Court's precedents, controlled?
>>>
>>>Michael W. McConnell
>>>University of Utah College of Law
>>>332 S. 1400 East Room 102
>>>Salt Lake City, UT 84112
>
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712