O'Melveny Insights 2023

38 SCOTUS’s Unprecedented Approach to Precedent More generally, it is critical to grasp that even where the current Court is not prepared to overrule past decisions, it may, nonetheless, be willing to wall off precedent from any future extensions. The Court may even be open to arguments for limiting past decisions to their facts— which can be tantamount to overruling them. The task for parties and their counsel is to adjust to this new reality. It now seems that a Court majority is prepared to treat a growing number of past decisions as applicable only to their own particular facts. O’Melveny scored a hat trick at the Supreme Court, winning all 3 cases argued during the 2021-22 Term.