This paper was edited by Eric Quintane.
The Supreme Court is placed at the top of the US judicial system. This Court can hear all civil cases between states and cases between a state and all federal institutions. Also, it can review all decisions made by lower courts. As such, it is one of the three fundamental branches of the US government. Its decisions can have far reaching effects on all areas of life in the USA. There is a large legal literature on the workings of the Supreme Court.
In this context, Fowler and Jeon (2008) created a network file with all Supreme Court decisions for the period 1789–2001 and their citations to earlier decisions made by this Court. The number of decisions in this network is 30,288. Producing these data was an invaluable service for scholars studying this court and for network analysts. It facilitated the study of the US Supreme Court in terms of network analytic ideas. The network ties are citations from later decisions to earlier decisions taken from the majority opinions Very frequently, multiple opinions are written for each decision. One is the majority opinion which is written by one justice that other justices join. There can be concurring opinions which agree with the decision but use different arguments or rationales for supporting the decision that was made. There can be dissenting opinions written by justices who reject the decision. Fowler and Jeon (2008) used only the majority opinions in constructing the citation network as they are the dominant opinions for the decisions. As a result, the decision and the majority opinion are treated as being the same.
There are multiple ways of studying this citation network. Fowler and Jeon used it to study the evolution of
A different approach to studying this network was presented in Batagelj et al. (2014, Chapter 6). Rather than use counts of citations to (or from) decisions, they opted for examining the extent to which earlier decisions were
Another island identified diverse groups of people and ideas targeted in the US court system following three Acts Two were the Selective Service Act and Espionage Act that were passed in 1917. The Sedition Act was passed in 1918 to extend the Espionage Act to broaden the number of offenses meriting punishments for interfering with the operation of the US government.
Both of these studies provided useful insights regarding the decisions of the Supreme Court and the impacts these decisions had on the USA, its institutions and its population. The key new idea introduced here is to treat the Supreme Court citation network as being signed when overturning of prior decisions occurs.
The rest of the paper is organized as follows. Section “Treating the Supreme Court Citation Network as Signed” provides the rationale of defining negative ties in the Supreme Court citation network and treating it being signed. Section “Consistencies and Inconsistencies in Triples of Decisions” introduces the idea of there being inconsistencies in signed triples of decisions when overturning is involved. Section “The Supreme Court Overturning Network Data” provides the definition of multiple signed networks that result along with the rationale for studying them in detail. We focus on the decisions linked by negative ties in Section “Networks of Decisions Linked Only by Negative Citation Ties.” The mobilization of inconsistency ideas follows in Section “Mobilizing Ideas Regarding Inconsistencies When Decisions Are Overturned” and forms the core of the paper Most of the analyses performed for our results used Pajek (Batagelj and Mrvar, 1998).
Here, we introduce a different approach to these data by focusing on this citation network as one that is There are decisions that cite no earlier decisions and are not cited by later decisions. As such, they are isolates in the citation network and were not considered further.
To our knowledge, such an approach has not been adopted hitherto when examining the Supreme Court
As noted above, Fowler and Jeon (2006) considered
Most discussions of the Supreme Court overturning prior decisions focus primarily on single pairs of decisions. In considering such (overturning, overturned)
Here, we focus primarily on the presence of inconsistencies in triples of decisions when there are negative ties between some pairs of decisions. This is illustrated in Figure 1 with three triples of hypothetical Supreme Court decisions where consistency appears to be lacking. In the left-side triple, Decision 1 cites Decisions 2 and 3 positively even though Decision 2 overturns Decision 3. In the middle triple, Decision 1 cites Decision 2 positively while Decision 2 cites Decision 3 positively. Yet Decision 1 overturns Decision 3. In the rightmost triple, Decision 1 overturns Decision 2 and cites positively Decision 3. But Decision 2 also cites Decision 3 positively. All these triples are inconsistent. We provide real empirical examples of each of these inconsistent triple types in Section “Mobilizing Ideas Regarding Inconsistencies When Decisions Are Overturned.” Ideally, none of these inconsistent triples would exist in a signed Supreme Court citation network if the arguments and ideas expressed in these decisions were thought through in a
However, there is a complication that arises here. Consider the rightmost triple in Figure 1. If Decision 1 overturns a
The primary data source for the signed network we consider herein is the Government Printing Office (2014) document: Additional information, along with confirmations for determining pairs of overturning and
For the period we consider (1789–2005) To consider a larger number of instances of this court overturning prior decisions, we expanded the time range to 2005, the end of the Rehnquist Court.
Some decisions were overturned multiple times. It would seem that if a prior decision is overturned
Multiple signed networks can be constructed. One is the network of decisions linked by only the negative ties. This is illustrated in Figure 2 and discussed further in Section “Networks of Decisions Linked Only by Negative Citation Ties.” There is also the adaptation of the Fowler and Jeon (2008) network where the overturning links defined as negative rather than positive were changed. For our major analyses, we labeled this as a “starting” network. We used this network to create another signed network by embedded it into the network of all relevant decisions and the positive ties linking them in the Fowler and Jeon network. The relevance for this inclusion was that the additional decisions had to meet two critical criteria. One was to include all earlier decisions that were cited (positively) by the decisions in the starting network. The second was to include
We first show the bigger picture regarding overturning of prior decisions in Figure 2. This is the first signed network as all the network ties in this figure are A future project will include the Roberts Court that followed the Rehnquist Court.
Figure 2 raises the issue of why the rates of overturning prior decisions have increased over time. In large part, we think this may be due simply to the increasing number of prior decisions that could be considered as relevant and wrongly decided by earlier courts. However, we suspect that there may be an additional source for these increased levels of overturning prior decisions. When writing decisions, Justices are free to cite any prior decisions made by earlier courts. More consequentially, perhaps, they are free to One compelling example of this phenomenon came with the
Also, specific Courts may have increased rates for overturning prior decisions if their broad ideological stances differed. The Warren Court is generally thought to have been “liberal.” Indeed, Fowler and Jeon (2008) note that the Warren Court often overruled precedent. Irons (2002) makes a compelling case that, over its long-term history, the Supreme Court was filled by insiders making decisions with negative impacts on outsiders, primarily minorities, women and the poor. Put differently, Irons emphasized the Warren Court’s expansive view of rights for
With different judicial philosophies, there are incentives for targeting earlier decisions that differ in this regard. It will be a monumental task to pursue this as Supreme Court decisions will have to be read closely, along with concurrences and dissents. That is reserved for another project.
Here, we consider the network having only the negative overturning links between decisions regardless of the courts making them. It merits attention by having a set of weak components. Their distribution in terms of size is: one having 10 decisions; six with 6 decisions; ten having 5 decisions; 15 with 4 decisions; 42 with 3 decisions; and 164 dyadic pairs. While all these components can be considered, we focused on some of the largest weak components. The primary concern for doing this was to understand the substantive issues involved in these cases, the constitutional issues used to decide a case, and the Courts involved in these decisions. This is fully consistent with a general research strategy that considers the
The two overturning decisions both came from the Warren Court (1953–1969). The overturned decisions were made by the Fuller (1888–1910), White (1910–1921), Taft (1921–1930), Hughes (1930–1941), Stone (1941–1946), and Warren Courts. The primary substantive concern was the immunity provision (against self-incrimination) The Fifth Amendment allows defendants not to provide testimony that would be incriminating. The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fifth Amendment, in full, states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment (Section 1) states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Warren Court, This is a part of what Fowler and Jeon (2006) noted regarding the Warren Court – but with a very different interpretation.
The other decisions overturned by 364US206 all concerned earlier decisions accepting the use of police procedures violating the US constitution. The decision in 378US52, a landmark case according to multiple sources, was emphatic about rights against self-incrimination guaranteed under the Fifth Amendment. Earlier Courts were willing to declare that if defendants “took the Fifth” it was, in effect, an admission of guilt – with convictions following frequently.
Figure 4 contains a six-vertex weak component with
The substantive issues for these decisions were: (a) civil rights and segregation under the “separate but equal” doctrine; and (b) targeting minorities, especially blacks (but also Chinese people at the time of the earliest overturned decision). The constitutional issues were twofold. One was, as noted above, the Fourteenth Amendment (regarding equal protection). The second was the ability of federal courts to intervene at the state level, something frequently opposed under the rubric of “State’s Rights.” This is another example of the Warren Court overturning precedents.
Both of these overturning decisions were hailed as a part of major victory for the Civil Rights Movement. Of course, they were. But these decisions also set off a fire storm of reactions both in the legal arena and, perhaps more consequentially, with illegal (and frequently very violent) actions including many lynchings of black people, when white people, especially – but not exclusively – in the South, took exception to these rulings and targeted African Americans. This example makes clear also the necessity for considering the social and legislative contexts within which Supreme Courts make their decisions, a point made in Batagelj et al. (2014, Chapter 6).
Figure 5 shows a five-vertex weak component with a two-step path of overturning decisions The longest all negative path in these data featured the Rehnquist Court overturning a decision of the Warren Court which overturned a Vinson Court decision that overturned one of its own decisions.
Studying these three weak components of overturning and overturned decisions made by this Court shows the interplay between the substantive issues considered for specific decisions, the constitutional principles involved, the positions of Justices regarding both, and the contexts within which overturning decisions are made.
We now tackle a different topic in which the negative overturning links between Supreme Court decisions are placed in a more general network context. For this, we reconsider the notion of inconsistency that may exist when Courts overrule their prior decisions.
Figure 1 displays three potentially inconsistent triples. The set of all possible decision triples are shown in Figure 6. What are the counts of all these triples in the signed Supreme Court network?
The triples in the top row are logically consistent while the triples in the bottom row are inconsistent. However, the one on the right of the lower panel is ambiguous. It suggests complete incoherence. Fortunately, as shown below, such triples do not exist in our data.
Table 1 shows the distribution of the eight types of potential triples shown in Figure 6. The method for doing this is described in Doreian and Mrvar (2016). Given the overwhelming number of positive ties in this network, the large number of all positive triples is not a surprise. A surprise, at least to us, was the number of inconsistent triples in this network. The obvious question is simple to state: is this distribution of triples types different from what would be expected by chance? This is an important issue. Without making sure that this is not what would be expected by chance, all we have are simple descriptions.
Counts of consistent and inconsistent triple types in the expanded signed network.
Consistent triples and triple counts | Inconsistent triples and triple counts | ||
---|---|---|---|
All positive | 247,152 | One negative- type 1 | 1,578 |
Two negative ties type 1 | 90 | One negative- type 2 | 1,233 |
Two negative ties type 2 | 0 | One negative- type 3 | 1,413 |
Two negative ties type 3 | 29 | All negative | 0 |
Total | 274,271 | Total | 4,224 |
To tackle this issue, we propose two null models. One attempts to get directly at the expected distribution of triple types under randomness. In this network, there were 9,279 decisions; 116,899 positive ties; and 379 negative ties. The total number of ties is 117,278. Two probabilities We are reporting these probabilities to four places of decimals. In all our calculations, we used ten places of decimals.
The first observed and expected distribution of ties in the signed network.
Triple type | Expected number, E | Observed number, O |
---|---|---|
All positive | 275,685 | 274,152 |
Two negative ties type 1 | 3 | 90 |
Two negative ties type 2 | 3 | 0 |
Two negative ties type 3 | 3 | 29 |
One negative-type 1 | 894 | 1,578 |
One negative-type 2 | 894 | 1,233 |
One negative-type 3 | 894 | 1,413 |
All negative | 0 | 0 |
Defining χ2 for these distributions as Σ (O ‒ E)2/E, we get χ2(6) = 3,713.05 which is far larger than anything reported in all available tables for this measure regarding significance. The observed distribution of triple types is
Our second approach toward establishing a random null model took a different tack. Given the directed ties in the signed networks, we randomly selected 379 arcs (their number in this network) and assigned them the value −1. The rest were set to +1. This experiment was repeated 1,000 times. The distributions for all triple types were highly symmetric with the mean and median values of the distributions being very close. Table 3 shows the observed and “approximate” expected distributions for triple types using the medians from the generated distributions of the triple types.
The expected distribution of triple types based on simulations and the observed distribution.
Triple type | Expected | Observed |
---|---|---|
All positive | 275,808 | 274,152 |
Two negative ties type 1 | 3 | 90 |
Two negative ties type 2 | 3 | 0 |
Two negative ties type 3 | 3 | 29 |
One negative-type 1 | 891 | 1,578 |
One negative-type 2 | 890 | 1,233 |
One negative-type 3 | 894 | 1,413 |
All negative | 0 | 0 |
Using the same definition for χ2 and applying it for Table 3 yields χ2(6) = 3,722.72. This value is also extremely significant. The observed distribution of the observed triad types is
The summary substantive details of comparing the observed distributions with those predicated in random processes are: Compared to a random distribution of signs of the network, empirically, there are far Compared to a random distribution of signs on the network, there are The all negative triple did not exist in either the observed world nor one in a world predicated by chance. Compared to a random distribution of signs on the network, there are Compared to a random distribution of signs on the network, there are
Given the observed distribution of triple types, it became imperative to examine closely the distributions shown in Table 1. These numbers can be assessed in several ways. If the measure of consistency is the proportion of consistent triples, it is 0.983, suggesting that there is, overall, a high level of consistency. However, we think this is misleading as it is driven by the huge number of positive ties. If the all-positive triples (the left-most triple in the top row of Figure 6) are ignored, the overall measure of consistency plummets to 0.027, suggesting a very high level of inconsistency when overturning prior decisions is examined closely. At best, this is troubling and indicates that when the Supreme Court overturns prior decisions, the rationale for doing so is both selective and inconsistent.
We include two additional figures produced from the signed network having both positive and negative ties. They serve two purposes. One is to show the existence of inconsistent triples in a broader context. The other to examine what is involved by their presence, a topic returning us to the question we posed earlier: Does the presence of inconsistent triples matter?
In Figure 7, there are eight inconsistent triples identified as “One Negative 2” and two inconsistent triples identified as “One Negative 3,” as defined in Figure 6. These inconstant triples exist. Equally important, both of the overturning links in Figure 7 are instances of
The substantive issues of the decisions shown in Figure 7 deal with governmental personnel, or seaman, employed on US ocean going vessels sailing under the authority of admiralty law, a very complex legal domain. The decisions included whether compensation is due to men who were injured or killed on these vessels and how wages are paid (or not). Most of the decisions were made by the Vinson Court. The overturning decision, 317US575 concerned a Peruvian vessel that has been seized by the USA. This decision mandated the return of the vessel to Peruvian company owning it. More generally, admiralty law, known also as maritime law, is a large body of law, both national and international, governing nautical issues and private maritime disputes. It deals with both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean going ships. The issues are remarkably complex. That there is confusion in dealing with them may not be too surprising. Yet it is reasonable to expect the highest court in the USA would issue clear and consistent rulings.
The second overturning decision shown in Figure 7 has 337US783 overturning 328US707. The overturned decision held for an injured seaman, that he is entitled to sue the operating company for damages in a state court and to have a jury trial under section 33 of the Merchant Marine Act of 1920 ( known also as the Jones Act), even if he was technically an employee of the United States. The overturning decision declared: “A general agent employed by the United States under the terms of the war-time standard form of general agency agreement to manage certain phases of the business of a ship owned by the United States and operated by the War Shipping Administration is not liable under Section 33 of the Merchant Marine Act of 1920, known as the Jones Act, to a member of the crew of the ship who suffered physical injury through the negligence of its master and officers, when the injury occurred after March 24, 1943, the date of enactment of the War Shipping Administration Act, known as the Clarification Act (
Figure 8 shows a set of decisions where there are 13 instances of inconsistent triples identified as “One Negative 1.” Again, every overturning citation tie to an earlier decision overturned it
The substantive issue featured in the decisions shown in Figure 8 concern systematic efforts by election officials, especially in the South, to prevent African Americans from voting through direct disenfranchisement and by using strategies such as poll taxes and literacy tests to prevent them from voting. There are four overturning decisions. The Warren Court decision, 383US663, ruled explicitly that a Virginia law allowing the use of poll taxes to prevent African Americans from voting was unconstitutional. A decision by the Burger Court, 405US330, ruled that a state law requiring residency requirements for black voters before they could vote was an unconstitutional infringement upon the right to vote and the right to travel. The decision, 313US2999, ruled that altering ballots made by black Americans was totally unconstitutional and explicitly overruled 256US232. The decision, 362US17 was more unusual in that it held that a ruling of a US District Court, holding that a law authorizing the Federal Government to bring civil actions against State Officials for discriminating against black citizens was unconstitutional. Even so, it is clear that there had been a systematic effort to prevent minorities from voting, albeit with some ambiguity.
As shown in Table 1, there are 4,224 inconsistent signed triples. Their presence is troubling as it suggests that in remaking law by overturning earlier precedents, the relevant issues are not thought through in a thorough fashion.
This paper introduced the idea of studying the citation network of ties between Supreme Court decisions in a new fashion by focusing on the court
We provided multiple descriptions and analyses to respond to this question. We asked how much overturning of prior decisions exists? We established a list of
The results in Sections “Mobilizing Ideas Regarding Inconsistencies When Decisions are Overturned and Empirical Examples of the Inconsistent Triple Types” suggest that new insights can be obtained by considering the overturning of prior decisions using signed citation networks. More importantly, in our view, is whether this court overturning earlier decisions are made in a coherent and consistent fashion. Our results show that, far too often, this was not the case. While the legal and political issues are important, it seems reasonable to expect the highest court in the land being capable of paying close attention to all of the legal issues involved when making its decisions.
The presence of so many inconsistent triples is disturbing. It suggests a daunting research agenda with multiple components. First, all the weak components of the network with only the negative ties must be examined to generate a more
Second, it will be useful to separate the overturning links according the Chief Justices of the Supreme Court over time. This implies two studies. One is a close examination of the overturning links
Putting together the findings that there are many, perhaps far too
Examining the distribution of the signed triples, as was done herein, along with the idea that many completely overturned decisions are cited by subsequent decisions, raises questions about the nature of
We finish with some speculations regarding
Blow (2018), in another
Given these assessments of their long-term goals, it is reasonable to predict that the number of overturning decisions made by the Roberts Court will increase, with