After the Override: An Empirical Analysis of Shadow Precedent

Abstract

Congressional overrides of prior judicial interpretations of statutory language are typically defined as equivalent to judicial overrulings, and they are presumed to play a central role in maintaining legislative supremacy. Our study is the first to empirically test these assumptions.Using a differences-in-differences research design, we find that citation levels decrease far less after legislative overrides than after judicial overrulings. This pattern holds true even when controlling for depth of the superseding event or considering only the specific proposition that was superseded. Moreover, contrary to what one might expect, citation levels decrease more quickly after restorative overrides-in which Congress repudiates the prior Supreme Court decision as incorrect-than after overrides intended to update or clarify the law. This suggests that ongoing citation of overridden precedents, what we call shadow precedents, may be driven more by information failure or ambiguity than by ideological disagreements between the branches of government.

Ideological Determinants of Citations to Supreme Court Precedent Across the Federal Judiciary

“…Others have considered the factors that influence citation as a means to better understand why a case might be invoked more frequently. Overrulings, subsequent summary decisions, vacancies on the Supreme Court, and age have all been shown to alter the citation patterns to precedent (Black and Spriggs II 2013;Benjamin and Vanberg 2016;Broughman and Widiss 2017;Masood, Kassow, and Songer 2017). Judicial citations provide a promising means of studying how precedent application varies with ideological factors, and how the law is shaped accordingly (Clark and Lauderdale 2010).…”