ABSTRACT
Although not everyone agrees that such a thing even exists, a “super precedent” has been defined as a longstanding Supreme Court decision that establishes “foundational institutional practices” (Landes and Posner 1976; 249). The practices established by these precedents become entrenched within society, are repeatedly endorsed and supported by public institutions, and become a source of many other lines of decisions. They can only be reversed through the most radical, unprecedented acts of political and judicial will (Gerhardt 2006, 1027). Landes and Posner (1976, 251), who are credited with coining the term, argue that a super precedent is
so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place, or, if they do arise, induces them to be settled without litigation. Such a “super-precedent” might never be cited in an appellate opinion yet have greater precedential significance than most frequently cited cases.
Even those who dispute the notion of a super precedent as anything more than a fancy name or an artificial designation will concede that if it exists it is embodied in decisions like Brown v. Board of Education (Barnett 2006; Solum 2006; Sinclair 2007).