Courts change policy through five distinct incremental mechanisms rather than just landmark rulings
Evidence
Sometimes the changes are dramatic, occurring through landmark rulings such as Brown that overrule previous decisions and announce a fundamental shift in direction. More often, however, changes in judicial policies are gradual or incremental. A court may explicitly modify its position in light of changing circumstances, as the Supreme Court did in dispensing with “all deliberate speed” and demanding immediate desegregation in the late 1960s after gaining the support of Congress and the presidency in its desegregation efforts. A court may also expand a legal principle by applying it to a new situation, as the Supreme Court did in Roe v. Wade, extending the right to privacy to encompass the right to terminate a pregnancy. In addition, a court may signal a change in policy by narrowing a legal principle announced in previous cases or by refusing to apply it to new situations. The Supreme Court’s rejection of interdistrict busing in Milliken v. Bradley is a prime example. Finally, a court may subtly modify policy by undermining precedents even as it claims to be adhering to them. The Supreme Court’s refusal to overrule Roe v. Wade while upholding regulations inconsistent with it in Planned Parenthood of Southeastern Pennsylvania v. Casey is a case in point. — G. Alan Tarr, Judicial Process and Judicial…, 3171
Categorization
- XREF: Ties directly to earlier chapters 143-145 on Milliken and Casey; this is the taxonomy of policy-change modes those cases instantiate. — connects to: Even landmark rulings leave their core principle disputed and unenforced until further litigation. — G. Alan Tarr, Judicial Process and Judicial…, 2938; Common law evolves incrementally and its influence across states rests on persuasion. — G. Alan Tarr, Judicial Process and Judicial…, 1434; State courts evolved by piecemeal court creation into complex systems now being consolidated — G. Alan Tarr, Judicial Process and Judicial…, 458 (+9 more)
Broader Connections
- A legal principle emerges from a long line of decisions.
#expands(0.80) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 134 - Legal precepts evolve slowly as working hypotheses continually retested in courts
#expands(0.78) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 644 - Inductive reasoning allows the law to adapt to changing societal times.
#expands(0.75) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 613