The Volokh Conspiracy - Justices' Changes of View on Big Issues:

I'm collecting a list of cases in which Justices clearly changed their views on a high-profile subject (compared to what they had said in an earlier decision). I prefer cases where the Justice isn't just acceding to changed precedent, but changing his views on the merits. Here are the things that quickly come to my mind.

1. Justice Brennan changing his views on obscenity, from accepting an obscenity exception to the free speech principle to basically rejecting it. Compare Roth v. United States (1957) with Paris Adult Theatre I v. Slaton (1973).

2. Justice Blackmun changing his views on the death penalty, from accepting its constitutionally to rejecting it. Compare Gregg v. Georgia (1976) with Callins v. Collins (1994).

3. Justice Brennan changing his views on legislative prayer, from strongly suggesting that it was constitutional to concluding that it wasn't. Compare Abington School Dist. v. Schempp (1963) with Marsh v. Chambers (1983).

4. Justice Blackmun changing his views on state "core functions" immunity to federal legislation, from supporting such an immunity to rejecting it. Compare National League of Cities v. Usery (1976) with Garcia v. San Antonio Metropolitan Transit Authority (1985).

5. Justice Thomas changing his views on right-to-jury-trial challenges to sentencing schemes, from rejecting such challenges to providing the fifth votes to strike down the schemes. Compare Almendarez-Torres v. United States (1998) with Apprendi v. New Jersey (2000).

6. Justice Thomas generally changing his views on commercial speech, from generally endorsing fairly broad government authority over it to generally rejecting it. Compare U.S. v. Edge Broadcasting (1993) with 44 Liquormart v. Rhode Island (1996).

7. Chief Justice Rehnquist and Justice O'Connor switching sides on corporations' right to engage in independent expenditures related to candidate campaigns (Rehnquist from no to yes, O'Connor from yes to no, though O'Connor's vote might be seen as acceding to precedent). Compare Austin v. Michigan Chamber of Commerce (1990) with McConnell v. FEC (2003).

If you can think of other examples, please note them in the comments. I am not looking for supposed inconsistencies in Justices' views, or simply signs of evolution when there's no clear change of mind (as, for instance, Justice Stevens' move from being very skeptical of race preferences in his early years on the Court to being much more open to them in later years — it's possible that this simply reflected his view, whether or not it is a well-founded view, that the later preference schemes were different from the earlier ones). Rather I'm looking for situations where Justices either say that they've changed their minds, or vote in ways that clearly contradict their earlier votes (for instance, as in example 7).

Also, please name a case representing the old view and a case representing the new view; otherwise, it's too easy to make mistakes.

	[Eugene Volokh, July 9, 2005 at 4:37pm] Trackbacks Justices' Changes of View on Big Issues: I'm collecting a list of cases in which Justices clearly changed their views on a high-profile subject (compared to what they had said in an earlier decision). I prefer cases where the Justice isn't just acceding to changed precedent, but changing his views on the merits. Here are the things that quickly come to my mind. 1. Justice Brennan changing his views on obscenity, from accepting an obscenity exception to the free speech principle to basically rejecting it. Compare Roth v. United States (1957) with Paris Adult Theatre I v. Slaton (1973). 2. Justice Blackmun changing his views on the death penalty, from accepting its constitutionally to rejecting it. Compare Gregg v. Georgia (1976) with Callins v. Collins (1994). 3. Justice Brennan changing his views on legislative prayer, from strongly suggesting that it was constitutional to concluding that it wasn't. Compare Abington School Dist. v. Schempp (1963) with Marsh v. Chambers (1983). 4. Justice Blackmun changing his views on state "core functions" immunity to federal legislation, from supporting such an immunity to rejecting it. Compare National League of Cities v. Usery (1976) with Garcia v. San Antonio Metropolitan Transit Authority (1985). 5. Justice Thomas changing his views on right-to-jury-trial challenges to sentencing schemes, from rejecting such challenges to providing the fifth votes to strike down the schemes. Compare Almendarez-Torres v. United States (1998) with Apprendi v. New Jersey (2000). 6. Justice Thomas generally changing his views on commercial speech, from generally endorsing fairly broad government authority over it to generally rejecting it. Compare U.S. v. Edge Broadcasting (1993) with 44 Liquormart v. Rhode Island (1996). 7. Chief Justice Rehnquist and Justice O'Connor switching sides on corporations' right to engage in independent expenditures related to candidate campaigns (Rehnquist from no to yes, O'Connor from yes to no, though O'Connor's vote might be seen as acceding to precedent). Compare Austin v. Michigan Chamber of Commerce (1990) with McConnell v. FEC (2003). If you can think of other examples, please note them in the comments. I am not looking for supposed inconsistencies in Justices' views, or simply signs of evolution when there's no clear change of mind (as, for instance, Justice Stevens' move from being very skeptical of race preferences in his early years on the Court to being much more open to them in later years — it's possible that this simply reflected his view, whether or not it is a well-founded view, that the later preference schemes were different from the earlier ones). Rather I'm looking for situations where Justices either say that they've changed their minds, or vote in ways that clearly contradict their earlier votes (for instance, as in example 7). Also, please name a case representing the old view and a case representing the new view; otherwise, it's too easy to make mistakes.