O'Melveny Insights 2023

36 The Supreme Court’s willingness—some say, eagerness—to jettison longstanding precedent is shaking the foundations of constitutional jurisprudence. Prominent examples include the Court’s recent decision overruling Roe v. Wade and the cases this Term challenging decades-old decisions on affirmative action. But the Court has also begun taking a new approach to precedent in a less noticed, but perhaps more significant way. In particular, the Court has shown an increasing willingness to reassess statutory decisions. And where a majority concludes that the reasoning of such past decisions is inconsistent with modern principles of statutory interpretation, the Court has refused to extend those decisions in any way. 09