Peter Nicolas, Reconstruction, 10 UC Irvine L. Rev. 937 (2020), https://digitalcommons.law.uw.edu/faculty-articles/592
UC Irvine Law Review
The U.S. Supreme Court’s decisions interpreting the U.S. Constitution in general and the Reconstruction Amendments in particular substantially constrain the ability of legislative and executive actors to address a variety of hot-button political issues, including abortion, gay rights, and affirmative action. So important are the Court’s decisions that the ability to appoint Justices who will shift the Court’s direction has been a central issue in recent presidential campaigns. Throughout history, decisive shifts in the Court’s composition have resulted in correspondingly dramatic shifts in constitutional doctrine. Yet surprisingly, these dramatic shifts have occurred with the Court rarely overturning any precedent.
Although others have identified selected instances of the Court engaging in stealth revision of precedent, this Article is both the first to provide a detailed taxonomy of the methods employed and to exhaustively consider their use in construing the Reconstruction Amendments. This stealth process, which this Article refers to as judicial reconstruction, occurs when the Court employs one or more of three different methods of transforming constitutional doctrine: selective quotation of precedent; re-characterization of precedent; and citations to “dissenting concurrences”—separate opinions in earlier cases that are concurrences in form but dissents in substance. Through the use of these methods, liberal and conservative justices alike have dramatically transformed constitutional law even when their decisions are unsupported by and at times diametrically at odds with the Court’s earlier precedents.
This Article concludes that U.S. Senators and commentators, with their almost laser-like focus on fidelity to stare decisis during the confirmation process, have overlooked—and perhaps even fostered—the opaque practice of reconstructing rather than the transparent process of overruling precedent. It further concludes that those examining judicial nominees’ commitment to respecting precedent should examine not merely their formal fidelity to stare decisis but instead their history of and views on reconstructing precedent