Dissents on the Rogers Court

By Wesley W. Horton

Justice Espinosa has done us all a favor in her dissenting opinion in State v. Peeler, 321 Conn. 375, by giving us the complete list of cases, for the nine years Chase Rogers has been the Chief Justice, in which the Supreme Court has overruled prior decisions of the Supreme Court. For anyone who thinks it is a tough sell to get the Supreme Court to overrule itself, do not scroll down any further in this blog until you have guessed how many cases since mid-2007 have done so. I will now divert your attention for a paragraph so you can’t see the answer before you have guessed.

The Chief Justice, with Justices Zarella and Espinosa, voted in dissent to uphold the death penalty decision in 2015 in State v. Santiago, 318 Conn. 1. Justice Espinosa obviously was upset when the Chief Justice then voted the other way in Peeler based solely on stare decisis grounds. The Chief Justice was concerned about overruling a decision a few months after it was issued where one of the four justices in the majority in Santiago had retired by the time of Peeler. The Chief Justice felt such a ruling would hurt the institutional credibility of the Supreme Court. Justice Espinosa’s list of overruling cases during the time of the Chief Justice’s tenure was meant to rebut that argument. Whether it is a persuasive rebuttal I put aside to a later blog in order to return to the main event: the number of overruling cases.

And the answer is: evif-ytnewt! Breaking the decisions down by year we find: five in 2008, two in 2009, one in 2010, one in 2011, five in 2012, four in 2013, three in 2014, three in 2015, and one through May in 2016. That is a lot of decisions. As Justice Espinosa point outs at page 511 after citing all the cases at page 508-11, some of the decisions overrule cases without even discussing stare decisis. Also, it is not as though the cases being overruled are ancient history. Only two of the twenty-five are overruling cases from before 1975; in fact over half of these are overruling cases in the past twenty years.

So don’t be squeamish about attacking Supreme Court decisions. If you don’t like the decision, maybe the justices won’t either.