The Supreme Court's Overruling of Constitutional Precedent: An Overview

Congressional research reportNov 29, 2005

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The Supreme Court’s Overruling of Constitutional

Precedent: An Overview

November 29, 2005

name redacted

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

The Supreme Court’s Overruling of Constitutional

Precedent: An Overview

Summary

As a general rule, the Supreme Court adheres to precedent, citing the doctrine

of stare decisis (“to stand by a decision”). The general rule of stare decisis is not an

absolute rule, however, and the Court recognizes the need on occasion to correct

what are perceived as erroneous decisions or to adapt decisions to changed

circumstances. In deciding whether to overrule precedent the Court takes a variety

of approaches and applies a number of different standards, many of them quite

general and flexible in application. As a result, the law of stare decisis in

constitutional decision making can be considered amorphous and manipulable, and

it is difficult to predict when the Court will rely on stare decisis and when it will

depart from it. This report cites instances in which the Court has overruled precedent

as well as instances in which it has declined to do so, and sets forth the rationales that

the Court has employed.

Contents

In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Supreme Court’s Overruling of

Constitutional Precedent: An Overview

In General

The Supreme Court has overruled 228 of its own decisions over the years, and

the most controversial of these decisions involved constitutional interpretation.1

How the Supreme Court explains its reversals of direction in constitutional

interpretation is the subject of this report.2

As a general rule, the Supreme Court adheres to precedent, citing the doctrine

of stare decisis (“to stand by a decision”). This means that, when the Court has laid

down a principle in deciding a case, ordinarily it will apply that same principle in

future cases with substantially similar facts.3 The general rule of stare decisis is not

an absolute rule, however; the Court recognizes the need on occasion to correct what

are perceived as erroneous decisions or to adapt to changed circumstances. In

deciding whether to overrule precedent the Court takes a variety of approaches and

applies a number of different standards, many of them quite general and flexible in

application. As a result, the law of stare decisis in constitutional decision making

has been called amorphous and manipulable, and has been criticized as incoherent.4

“Supreme Court Decisions Overruled by Subsequent Decisions,” in CONSTITUTION OF THE

UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION, 2387-2399 (CRS 2002; 2004

Supplement) (listing 225 overruled decisions through the end of the 2003 Term; the Court

overruled three more decisions during its 2004 Term).

Different issues confront lower courts, which lack authority to overrule Supreme Court

precedent and are obligated to follow it.

An alternative approach is to distinguish or narrow a precedent. A less charitable view is

that “[t]he alternative to disavowing precedent is manipulating it.” Frank H. Easterbrook,

Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 424 (1988).

“[I]t is quite clear to any observer that the Court has no coherent or stable conception of

the appropriate role of precedent in constitutional adjudication,” and this fact creates the

impression that “the doctrine is invoked only as a mask hiding other considerations.” Henry

Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723,

753, 743 (1988). “We do not have – never can have – a comprehensive theory of

precedent.” Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73

CORNELL L. REV. 422, 423 (1988).

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Adherence to precedent is a fundamental principle of jurisprudence that

promotes certainty in the law and uniformity in the treatment of litigants, and thereby

prevents arbitrariness.5

The obligation to follow precedent begins with necessity, and a contrary

necessity marks its outer limit. With Cardozo, we recognize that no judicial

system could do society’s work if it eyed each issue afresh in every case that

raised it. Indeed, the very concept of the rule of law underlying our own

Constitution requires such continuity over time that a respect for precedent is, by

definition, indispensable.6

Stare decisis is not a constitutional command; as Justice Frankfurter wrote,

“stare decisis is a principle of policy and not a mechanical formula of adherence to

the latest decision.”7 The doctrine reflects a policy judgment that “in most matters

it is more important that the applicable rule of law be settled than that it be settled

right.”8 A safety valve is deemed necessary, however. In some instances it becomes

important to the Court to correct an earlier interpretation that it views as erroneous

or no longer viable. Although most Justices agree that error correction should be the

exception to the rule, defining the circumstances under which a decision should be

overruled is a difficult task. An inconsistent approach by the Court in resolving the

tension between the opposing goals of continuity and error correction can itself create

uncertainty and unpredictability.

The Court often explains that it is less reluctant to overrule a decision that

involves constitutional interpretation rather than interpretation of a statute.

[I]n cases involving the Federal Constitution, where correction through

legislative action is practically impossible, this Court has often overruled its

earlier decisions. The Court bows to the lessons of experience and the force of

better reasoning, recognizing that the process of trial and error, so fruitful in the

physical sciences, is appropriate also in the judicial function.9

“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound

down by strict rules and precedents.” The Federalist No. 78, at 502-03 (Alexander

Hamilton) (Robert Scigliano ed., 2001).

Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (citing BENJAMIN CARDOZO, THE

NATURE OF THE JUDICIAL PROCESS 149 (1921)). Put other ways, “to change the concept of

the law every other month makes a mockery of its majesty and a yo-yo of its practice."

Gweszcz Appeal, 206 Pa. Super. 397, 213 A.2d 155, 159 (1965) (dissenting opinion of

Judge Watkins); frequent overruling of precedent can “bring adjudications of this tribunal

into the same class as a restricted railroad ticket, good for this day and train only.” Smith

v. Allwright, 321 U.S. 649, 669 (1944) (Justice Roberts dissenting).

Helvering v. Hallock, 309 U.S. 109, 119 (1940).

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (Justice Brandeis dissenting).

Burnet, 285 U.S. at 407 (Justice Brandeis dissenting). Stare decisis “has only a limited

application in the field of constitutional law.” St. Joseph Stock Yards Co. v. United States,

298 U.S. 38, 94 (Justices Stone and Cardozo concurring). “Our willingness to reconsider

our earlier decisions has been particularly true in constitutional cases, because in such cases

correction through legislative action is practically impossible.” Seminole Tribe of Fla. v.

(continued...)

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Nonetheless, when justifying an overruling the Court usually looks for something in

addition to its belief that a case was wrongly decided. “Although adherence to

precedent is not rigidly required in constitutional cases, any departure from the

doctrine of stare decisis demands special justification.”10

“Special justification” can be one or more of several different considerations,

and how strong a justification the Court requires can vary with the importance of the

precedent as well as with the importance the Court attaches to overruling it. The

decision whether to adhere to a constitutional decision “is a complex and difficult

one . . . that must account for a variety of often competing considerations.”11 In

reexamining a constitutional precedent, the Court looks to “a series of prudential and

pragmatic considerations designed to test the consistency of overruling a prior

decision with the ideal of the rule of law, and to gauge the respective costs of

reaffirming and overruling a prior case.”12 The Court has looked to the following

general considerations in overruling precedent.

[We] may ask whether the rule has proven to be intolerable simply in defying

practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965);

whether the rule is subject to the kind of reliance that would lend a special

hardship to the consequences of overruling and add inequity to the cost of

repudiation, e.g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486

(1924); whether related principles of law have so far developed as to have left

the old rule no more than a remnant of abandoned doctrine, see Patterson v.

McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so

changed, or come to be seen so differently, as to have robbed the old rule of

significant application or justification, e.g., Burnet, supra, at 412 (Brandeis, J.

dissenting).13

Applications

All of these possibilities may be examined when the Court is asked to overrule

a decision at the heart of a major national controversy.14 In considering and rejecting

(...continued)

Florida, 517 U.S. 44, 63 (1996). The converse, of course, is that the Court “give[s] great

weight to stare decisis in the area of statutory construction [because] ‘Congress is free to

change this Court’s interpretation of its legislation.’. . . Congress, not this Court, has the

responsibility for revising its statutes.” Neal v. United States, 516 U.S. 295-96 (1996)

(quoting Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977)).

Arizona v. Rumsey, 467 U.S. 203, 212 (1984).

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 573 (1993)

(concurring opinion of Justice Souter).

Planned Parenthood v. Casey, 505 U.S. at 854. References to Casey are to the opinion

of the Court, not to the plurality opinion of Justices O’Connor, Kennedy, and Souter, or to

other opinions.

Casey, 505 U.S. at 854-55.

It is not often that the Court “calls the contending sides of a national controversy to end

their national division by accepting a common mandate rooted in the Constitution.” It has

(continued...)

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a request that it overrule its landmark abortion decision, Roe v. Wade,15 the Court

looked to the following factors.

[W]e may inquire whether Roe’s central rule has been found unworkable,

whether the rule’s limitation on state power could be removed without serious

inequity to those who have relied upon it or significant damage to the stability

of the society governed by it; whether the law’s growth in the intervening years

has left Roe’s central rule a doctrinal anachronism discounted by society; and

whether Roe’s premises of fact have so far changed in the ensuing two decades

as to render its central holding somehow irrelevant or unjustifiable in dealing

with the issue it addressed.16

Finding none of these factors present, the Casey majority saw no basis for

overruling Roe. In their view, Roe had not proven unworkable; there was reliance of

a sort (“an entire generation has come of age free to assume Roe’s concept of liberty

in defining the capacity of women to act in society, and to make reproductive

decisions”);17 “no erosion of principle going to liberty or personal autonomy” had

undermined “Roe’s central holding”; because Roe’s holding was viewed as consistent

with other personal liberty decisions, reliance on Roe’s precedent was viewed as

unlikely to lead to erroneous decisions; and, although “time [had] overtaken some of

Roe’s factual assumptions,” no changed circumstances had undermined Roe’s central

holding.18 The Casey Court emphasized that “a decision to overrule should rest on

some special reason over and above the belief that a prior case was wrongly

decided.”19

A basic change in the law upon a ground no firmer than a change in our

membership invites the popular misconception that this institution is little

different from the two political branches of Government. No misconception

could do more lasting injury to this Court and to the system of law which it is our

abiding mission to serve.20

Societal changes were important – albeit somewhat different – considerations

in two major overruling decisions of the Twentieth Century, West Coast Hotel v.

(...continued)

done so “twice in our lifetime, in the decisions of Brown and Roe.” Planned Parenthood

v. Casey, 505 U.S. 833, 867 (1992).

410 U.S. 113 (1973).

505 U.S. at 855.

Reliance is more commonly associated with commercial interests. “Considerations in

favor of stare decisis are at their acme in cases involving property and contract rights, where

reliance interests are involved.” Payne v. Tennessee, 501 U.S. 808, 828 (1991).

505 U.S. at 860-61.

505 U.S. at 864.

505 U.S. at 864 (quoting Mitchell v. W.T. Grant Co., 416 U.S. 600, 636 (1974) (Justice

Stewart dissenting)).

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Parrish (1937)21 and Brown v. Board of Education (1954).22 In West Coast Hotel,

the Court overruled its 1923 decision in Adkins v. Children’s Hospital,23 which had

invalidated a state minimum wage law for adult women. West Coast Hotel was not

a narrow ruling, but rather in effect reversed the whole line of Lochner decisions

premised on acceptance of laissez-faire economics and relying on employers’ liberty

of contract to restrict social welfare legislation.24 The nation’s experience during the

Great Depression had changed perceptions between Adkins and West Coast Hotel.

As the Court put it, reconsideration was “imperative” due in part to “the economic

conditions which have supervened, and in the light of which the reasonableness of

the exercise of the protective power of the state must be considered.”25 Although also

grounding its decision in due process doctrine and in correcting what it viewed as an

erroneous interpretation in Adkins, the Court took judicial notice of “the unparalleled

demands for relief which arose during the recent period of depression,” and

concluded that a state could legislate to prevent the exploitation of a class of workers

who were “relatively defenseless” and who might become dependent upon the

community for support.26

In Brown v. Board of Education, the Court arguably forced social change more

than it responded to it.27 The Court abandoned its interpretation of the Equal

Protection Clause as allowing “separate-but-equal” treatment of the races, and held

that racial segregation in the public schools was inherently unequal.28 The Court

justified its changed interpretation by changing its conclusion about the stigmatizing

effects of segregation. “Whatever may have been the extent of psychological

knowledge at the time of Plessy v. Ferguson, this finding [that racial segregation

stigmatizes minority children] is amply supported by modern authority. Any

language in Plessy v. Ferguson contrary to this finding is rejected.”29 The Court cited

300 U.S. 379 (1937).

347 U.S. 483 (1954).

261 U.S. 525 (1923).

The reference is to Lochner v. New York, 198 U.S. 45 (1905), in which the Court relied

on liberty of contract theory to invalidate a New York law restricting the hours of labor in

bakeries.

300 U.S. at 390.

300 U.S. at 399.

The Brown Court did not address, but necessarily rejected, South Carolina’s stare decisis

societal reliance argument that a whole social order rested on the separate-but-equal

interpretation. Brief for Appellees on Reargument at 59-60, Briggs v. Elliott, 347 U.S. 483

(1954). (Briggs was one of the cases consolidated with Brown.)

The separate-but-equal doctrine derived from Plessy v. Ferguson, 163 U.S. 537 (1896),

in which the Court upheld racial segregation in transportation. Plessy was overruled in 1956

when the Court summarily affirmed a decision applying Brown’s principles to

transportation. Gayle v. Browder, 352 U.S. 903 (1956).

347 U.S. at 494-95.

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academic studies, rather than general societal acceptance or experience, for the

“modern authority” from which its “psychological knowledge” was derived.30

As the Casey Court synthesized Brown and West Coast Hotel, “[e]ach rested on

facts, or an understanding of facts, changed from those which furnished the claimed

justifications for the earlier constitutional resolutions.” Because “each case was

comprehensible as the Court’s response to facts that the country could understand,”

the decisions were also “defensible, not merely as the victories of one doctrinal

school over another by dint of numbers . . . , but as applications of constitutional

principle to facts as they had not been seen by the Court before.”31

A divisive social issue was also implicated in 2003 when the Court, overruling

a 1986 decision, struck down a state law that prohibited private, consensual,

homosexual sodomy. Lawrence v. Texas,32 unlike Brown and West Coast Hotel, did

not purport to rest on changed facts or a changed understanding of facts. Rather, the

Court in Lawrence asserted that the Court in Bowers v. Hardwick33 had misread its

own precedent and had too narrowly defined the liberty interest at stake. The Court

justified its departure from stare decisis by concluding that the “foundations” of

Bowers had been “eroded” by subsequent decisions,34 that the “weakened” precedent

of Bowers had been subjected to “substantial and continuing criticism,”35 and that

there had been “no individual or societal reliance . . . of the sort that could counsel

against overturning its holding.”36 Dissenting Justice Scalia challenged these

conclusions, and suggested that Roe “satisfies these conditions to at least the same

degree as Bowers.”37

347 U.S. at 494 n.11. The lower court in Brown, though bound by the Supreme Court’s

separate-but-equal doctrine, had made similar findings that segregation branded minority

children as inferior. Id. at n.10.

Casey, 505 U.S. at 863-64. The fact that Brown was a unanimous decision also

undermined the argument that one doctrinal school had triumphed over the other by “dint

of numbers” or by changed membership on the Court.

539 U.S. 558 (2003).

478 U.S. 186 (1986).

539 U.S. at 576 (relying principally on Casey for its description of a broad liberty interest

in defining one’s personal relationships, and on Romer v. Evans, 517 U.S. 620 (1996), which

struck down a Colorado provision that denied homosexuals protection under antidiscrimination law).

539 U.S. at 576.

539 U.S. at 577.

539 U.S. at 586. While agreeing that Romer had eroded the foundations of Bowers,

Justice Scalia asserted that Washington v. Glucksberg, 521 U.S. 702 (1997), had similarly

eroded the foundations of Roe and Casey. Roe and Casey, of course, had, like Bowers, been

subjected to “unrelenting criticism.” As for reliance, the Justice suggested that there had

been “overwhelming” societal reliance on Bowers that far exceeded the reliance that the

Casey Court found to have been placed on Roe. Id. at 588-91.

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Other recent overruling decisions that received considerable public attention

barred application of the death penalty to mentally retarded persons and to juveniles.

In 1989 the Court had refused to hold that execution of a mentally retarded

individual,38 or of an individual who was 16 or 17 at the time of his offense,39

violated the Eighth Amendment; in 2002, however, the Court reversed its conclusion

about execution of the mentally retarded,40 and in 2005 it did so for juveniles.41

These decisions shed little light on general principles governing departures from

stare decisis, however, because they were controlled by the unique language of the

Eighth Amendment’s prohibition against “cruel and unusual punishment.”42

Basically, the Court determined that, although execution of the mentally retarded or

of juveniles had not been “unusual” in 1989, it had become so by 2002 and 2005,

respectively.43

Often, especially if no major social issue such as abortion or racial segregation

is at issue, society’s understanding of the precedent is not implicated, and the Court

may change and narrow its focus. Other factors, such as reliance or workability, may

carry the day. For example, lack of workability was the principal reason cited by the

one Justice whose changed vote required the Court to reverse itself on a federalism

issue for the second time in less than a decade. Justice Blackmun, writing for a fiveto-four majority in Garcia v. San Antonio Metropolitan Transit Authority,44 declared

that the test the Court had formulated nine years earlier for determining whether

Congress could impose the minimum wage and overtime requirements of the Fair

Labor Standards Act on state governments – insulating states when performing

“traditional governmental functions” – was not only a misinterpretation of the

Constitution, but had proved “unworkable.”45 Lower courts had struggled without

success to apply the test, the Court itself had disclaimed a “static, historical”

Penry v. Lynaugh, 492 U.S. 302 (1989).

Stanford v. Kentucky, 492 U.S. 361 (1989).

Atkins v. Virginia, 536 U.S. 304 (2002).

Roper v. Simmons, 125 S. Ct. 1183 (2005).

Recognition of evolving societal standards is found in some judicial constructs of

substantive due process as well as in the language of the Eighth Amendment. Compare,

e.g., Trop v. Dulles, 356 U.S. 86, 100-01(1958) (plurality opinion) (the Eighth Amendment

“must draw its meaning from the evolving standards of decency that mark the progress of

a maturing society)” with Rochin v. California, 342 U.S. 165, 172, 173 (1952) (due process

is violated by official conduct that “shocks the conscience”; states in their prosecutions must

“respect certain decencies of civilized conduct”).

The Court reached its 2005 conclusion about the juvenile death penalty in spite of the fact

that in 2002 it had contrasted the national consensus said to have developed against

executing the mentally retarded with what it then saw as a lack of consensus regarding

execution of juveniles. Atkins, 536 U.S. at 315 n.18.

469 U.S. 528 (1985). Garcia overruled National League of Cities v. Usery, 426 U.S. 833

(1976). Usery had overruled Maryland v. Wirtz, 392 U.S. 183 (1968).

469 U.S. at 531.

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approach to defining “traditional” governmental functions,46 and the Court had

abandoned a somewhat analogous tax immunity distinction between governmental

and proprietary functions.47

The other side of the coin, of course, is that if a decision has proved workable

in practice (and if its theoretical underpinnings have not been eroded), Justices may

be unwilling to overrule it despite disagreement on the merits. For example, in

refusing to overrule its landmark decision in Miranda v. Arizona,48 the Court in

Dickerson v. United States49 pointed to the fact that Miranda warnings had become

“embedded in routine police practice to the point where the warnings have become

part of our national culture.”50 Chief Justice Rehnquist’s opinion for the Court stated

that “principles of stare decisis weigh heavily against overruling” Miranda

“[w]hether or not we would agree with Miranda’s reasoning and its resulting rule,

were we addressing the issue in the first instance.”51

Reliance interests can sometimes tip the scales against overruling. In declining

to overrule a 25-year-old precedent interpreting the Commerce Clause as prohibiting

a state from collecting use taxes on out-of-state mail order businesses that do not

have a physical presence within the state, the Court stated that the rule had

“engendered substantial reliance and has become part of the basic framework of a

sizeable industry.”52

Occasionally the Court overrules precedent with only minor emphasis on

“special circumstances” justifying departure from stare decisis. In Payne v.

Tennessee,53 for example, the Court overruled two relatively recent decisions54 that

had barred consideration of victim impact statements during capital sentencing. The

Payne Court asserted that departure from precedent is justified “when governing

469 U.S. at 539, citing Transportation Union v. Long Island R.R., 455 U.S. 678 (1982).

469 U.S. at 540-44.

384 U.S. 436 (1966). Miranda held that as a general rule statements by suspects in

custodial interrogation are admissible at trial only if police first warned the suspect of his

right to remain silent and to be represented by counsel.

530 U.S. 428 (2000).

530 U.S. at 443. The Court also noted that Miranda’s “doctrinal underpinnings” had not

been eroded. Id.

530 U.S. at 443.

Quill Corp. v. North Dakota, 504 U.S. 298, 317 (1992) (refusing to overrule National

Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753 (1967), on Commerce

Clause grounds). The Court in Quill Corp. did overrule Bellas Hess’s alternative holding,

that imposition of use taxes violated the Due Process Clause, and thereby opened the

possibility that Congress, in exercise of its commerce power, could authorize state taxation

of mail order businesses. Id. at 318-19.

501 U.S. 808 (1991).

Booth v. Maryland, 482 U.S. 496 (1987); and South Carolina v. Gathers, 490 U.S. 805

(1989).

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decisions are unworkable or are badly reasoned.”55 The Court went on to distinguish

property and contract rights cases “where reliance interests are involved” from “cases

such as the present one involving procedural and evidentiary rules,” and pointed to

the fact that “Booth and Gathers were decided by the narrowest of margins, over

spirited dissents.”56

Making more of an effort to pay homage to stare decisis, the Court in Adarand

Constructors v. Pena57 asserted that correcting error can itself sometimes be a

“special circumstance” that justifies overruling precedent. That occasion arises,

Justice O’Connor asserted for the Court, when the precedent at issue was a departure

from “intrinsically sounder” and well-established principles – when the Court

“cannot adhere to our most recent decision without colliding with an accepted and

established doctrine.”58 The decision that Adarand overruled, Metro Broadcasting,

Inc. v. FCC,59 had held, in effect, that Congress had greater leeway than the states in

adopting remedial racial preferences; this interpretation, the Adarand Court asserted,

“undermined important principles . . . established in a line of cases dating back over

50 years.”60

The theory that departure from well-established doctrine renders a precedent

subject to overruling was not new with Adarand. Rather, the Adarand opinion found

support in several earlier decisions said to rest on the same principle.

In United States v. Dixon, 509 U.S. 688 (1993), we overruled the case of Grady

v. Corbin, 495 U.S. 508 (1990), because Grady “lack[ed] constitutional roots”

and was “wholly inconsistent with earlier Supreme Court precedent.” Dixon,

supra, at 704, 712. In Solorio v. United States, 483 U.S. 435 (1987), we

overruled O’Callahan v. Parker, 395 U.S. 258 (1969), which had caused

“confusion” and had rejected “an unbroken line of decisions from 1866 to 1960.”

Solorio, supra, at 439-441, 450-451. And in Continental T. V., Inc. v. GTE

Sylvania Inc., 433 U.S. 36 (1977), we overruled United States v. Arnold, Schwinn

& Co., 388 U.S. 365 (1967), which was an abrupt and largely unexplained

501 U.S. at 827 (emphasis added).

501 U.S. at 828-29. Citing a single state court decision in which the judges disagreed on

how to interpret Booth, the Court also asserted that the decisions had “defied consistent

application by the lower courts.” Id. at 830. The blunt dissent by Justice Marshall asserted

that the only change in the four years since Booth was in “the personnel of this Court,” not

in the law or the facts. Id. at 844. Between Booth and Payne, Justice Kennedy had replaced

Justice Powell, author of the Booth opinion, and Justice Souter had replaced Justice

Brennan, who had voted in the majority in Booth and had written the Court’s opinion in

Gathers. Both of the new Justices joined the Payne majority.

515 U.S. 200 (1995).

515 U.S. at 231, 232.

497 U.S. 547 (1990).

515 U.S. at 231.

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departure” from precedent, and of which “[t]he great weight of scholarly opinion

ha[d] been critical.”61

It may be, however, that Payne and Adarand put greater emphasis on the precedent’s

departure from well-established doctrine, and less emphasis any other justifications

for overruling.62

Both Dixon and Adarand overruled relatively recent decisions. As Justice

O’Connor pointed out in her concurring opinion in Adarand, a quick overruling of

a precedent that departed from its antecedents does not “depart from the fabric of the

law [but rather] restore[s] it,” and also minimizes the opportunity for reliance that

could deter overruling.63

Although the newness of a precedent is sometimes seen as reducing its

immunity from overruling, the oldness of a precedent does not always prevent its

overruling. For example, the Court in Erie Railroad v. Tomkins64 overruled Swift v.

Tyson,65 a decision then almost 100 years old, on the basis that its recognition of a

federal common law was unconstitutional, and had led to undesirable results in

commercial activities. There are numerous other instances of the Court’s overruling

of hoary precedent.66 Indeed, the older a precedent is, the more possibility there is

that its doctrinal underpinnings will have been eroded through developments in the

law.67

Age of a precedent can provide the opportunity for its reinforcement as well as

for its erosion. A precedent “that has become integrated into the fabric of the law”

is more likely to have engendered reliance interests, and its overruling may even

515 U.S. at 232-33 (also citing Payne v. Tennessee and two other decisions).

The Dixon Court concluded that Grady “‘contradicted an unbroken line of decisions,’

contained ‘less than accurate’ historical analysis, and ha[d] produced ‘confusion.’” 509 U.S.

at 711. The Solorio decision emphasized the “confusion” and unworkablitly of

O’Callahan’s service-connection test as well as its rejection of the “unbroken line of

decisions.” See 483 U.S. at 448-50. The GTE Sylvania Court also relied on workability

problems, citing the struggles of lower federal courts to interpret and apply Schwinn. See

433 U.S. at 48 & n.14.

515 U.S. at 234.

304 U.S. 64 (1938).

41 U.S. (16 Pet.) 1 (1842).

E.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), overruling

in part Ward v. Race Horse, 163 U.S. 504 (1896); Collins v. Youngblood, 497 U.S. 37

(1990), overruling Kring v. Missouri, 107 U.S. 221 (1883) and Thompson v. Utah, 170 U.S.

343 (1898); United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984),

overruling Coffey v. United States, 116 U.S. 436 (1886); and Hughes v. Oklahoma, 441 U.S.

322 (1979), overruling Geer v. Connecticut, 161 U.S. 519 (1896).

See, e.g., Hughes v. Oklahoma, 441 U.S. 322, 331 (1979), finding that the analysis of Geer

v. Connecticut, 161 U.S. 519 (1896), had been “eroded to the point of virtual extinction” by

the evolution of Commerce Clause interpretation.

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damage “the ideal of the rule of law.”68 Under this theory, espoused in the Court’s

opinion in Casey, stronger arguments should be required to overrule a precedent that

embodies the Court’s reliance on the Constitution to settle a “national controversy.”

[W]hen the Court does act in this way, its decision requires an equally rare

precedential force to counter the inevitable efforts to overturn it and to thwart its

implementation. . . . [O]nly the most convincing justification under accepted

standards of precedent could suffice to demonstrate that a later decision

overruling the first was anything but a surrender to political pressure, and an

unjustified repudiation of the principle on which the Court staked its authority

in the first instance. So to overrule under fire in the absence of the most

compelling reason to reexamine a watershed decision would subvert the Court’s

legitimacy beyond any serious question.69

One of the reasons that there is so little consistency in the Court’s approach to

overruling decisions is that individual Justices “individually . . . balance their

normative views on how the constitutional provision at issue should be interpreted

and their perceptions of the practical needs to submerge those views for the sake of

certain social or institutional values such as stability, continuity, or consensus.”70

There are a number of implications, not the least of which is the fact that an

individual Justice may strike a different balance between stare decisis and error

correction depending upon what the issue is and how strongly that Justice feels about

the “error” side of the balance. And of course individual Justices occasionally

change their minds as to the workability of precedents.71

Also, a Justice’s judicial philosophy can affect the balance. An originalist

presumably would favor error correction over preservation of precedent regardless

of how well established that precedent is. Justice Thomas recently advocated this

approach in construing the “public use” limitation of the Takings Clause.

Today’s decision is simply the latest in a string of our cases construing the Public

Use Clause to be a virtual nullity, without the slightest nod to its original

meaning. In my view, the Public Use Clause, originally understood, is a

Adarand, 515 U.S. at 233 (concurring opinion of Justice O’Connor). See also Justice

Scalia’s concurring and dissenting opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1,

34-35 (1989), refusing to join four other Justices in overruling Hans v. Lousiana, 134 U.S.

1 (1890), pointing out that numerous cases had followed Hans and that 49 Congresses had

legislated on the assumption that states were constitutionally insulated from suits in federal

courts.

505 U.S. at 867.

Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory,

60 GEO. WASH. L. REV. 68, 117-18 (1991).

See, e.g., Justice Blackmun’s opinion for the Court in Garcia, supra n. 44, changing his

position from National League of Cities and rejecting as unworkable the test adopted in that

case; and Justice Scalia’s recent statement in Tennessee v. Lane, 541 U.S. 509, 554 (2004)

(dissenting), that he will no longer adhere to the “congruence and proportionality” standard

the Court had devised for measuring the validity of statutes purporting to enforce the

Fourteenth Amendment.

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meaningful limit on the government’s eminent domain power. Our cases have

strayed from the Clause’s original meaning, and I would reconsider them.72

Justice Thomas has also questioned the holding of a 1798 case limiting application

of the Ex Post Facto Clause to punitive legislation.73

It is not just originalists who sometimes question long lines of authority. For

example, different groups of four dissenting Justices have long challenged the

Court’s interpretation of the Eleventh Amendment, set forth in 1890 in Hans v.

Louisiana,74 and reinforced in a number of the Court’s federalism decisions over the

last several decades, as barring federal court jurisdiction over suits brought by

citizens against their own state. The Amendment by its terms applies only to suits

brought against a state by citizens of another state, but the Court has interpreted the

provision as representing a broader recognition of the principle of sovereign

immunity. Justice Brennan, joined by three other Justices in 1985, urged

reconsideration.

Because I believe that the doctrine rests on flawed premises, misguided history,

and an untenable vision of the needs of the federal system it purports to protect,

I believe that the Court should take advantage of the opportunity provided by this

case to reexamine the doctrine’s historical and jurisprudential foundations. Such

an inquiry would reveal that the Court . . . has taken a wrong turn.75

On the current Court, Justices Stevens, Souter, Ginsburg, and Breyer have continued

this argument despite the fact that the Court majority has continued to apply and

extend the sovereign immunity principle reflected by Hans.76

For years Justices Brennan and Marshall voted against imposition of the death

penalty on the basis of their views that the death penalty “is in all circumstances cruel

Kelo v. City of New London, 125 S. Ct. 2655, 2678 (2005) (Justice Thomas dissenting).

Similarly, the Justice advocated reconsideration of Commerce Clause jurisprudence in

United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring): “I write separately to observe

that our case law has drifted far from the original understanding of the Commerce Clause.

In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that

both makes sense of our recent case law and is more faithful to the original understanding

of that Clause.”

Eastern Enterprises v. Apfel, 524 U.S. 498, 538-39 (1998) (concurring) (stating a

willingness to reconsider Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798)).

134 U.S. 1 (1890).

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 248 (1985). See also Justice Brennan’s

opinions in Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 496 (1987);

Dellmuth v. Muth, 491 U.S. 223, 233 (1989); and Port Auth. Trans-Hudson Corp. v. Feeney,

495 U.S. 299, 309 (1990).

See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 76, 100 (1996) (dissenting

opinions of Justices Stevens and Souter, respectively); Alden v. Maine, 527 U.S. 706, 760,

814 (1999) (dissenting opinion of Justice Souter) (“I expect the Court’s late essay into

immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one

being as unrealistic as the other, as indefensible, and probably as fleeting.”)

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and unusual punishment,” despite the accretion of precedents by which the Court

accepted capital punishment as constitutional, and Justice Blackmun later came to

hold the same view.77

How does one measure the impact of stare decisis on the Court’s decision

making? One extensive study of the subject suggests that the critical question is

whether “precedent actually cause[s] justices to reach decisions that they otherwise

would not have made.”78 This can be verified if Justices voice disapproval of

precedent but nonetheless vote to uphold it.79 Spaeth and Segal’s conclusion is that

“in the realm of stare decisis, minority will does not defer to majority rule.”80

Conclusion

This sampling of the Court’s practice in adhering to or departing from precedent

seems to bear out Justice Souter’s observation, quoted above, that the decision

whether to overrule precedent involves “a variety of often competing

considerations”81 (including competing perspectives among the Justices). Stare

decisis is always one such consideration when the Court decides whether to overrule

precedent. But because the Court does not appear to have developed a “coherent or

stable conception of the appropriate role of precedent in constitutional

adjudication,”82 it is difficult to predict when the Court will rely on stare decisis and

when it will depart from it.

See, e.g., Coker v. Georgia, 433 U.S. 584, 600 (1977) (Justices Brennan and Marshall

concurring separately); Lockett v. Ohio, 438 U.S. 586, 619 (1978) (Justice Marshall

concurring); Enmund v. Florida, 458 U.S. 782, 801 (1982) (Justice Brennan, concurring);

Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Justice Blackmun, dissenting from denial

of certiorari) (“From this day forward, I no longer shall tinker with the machinery of death.

. . . I feel morally and intellectually obligated simply to concede that the death penalty

experiment has failed.”)

HAROLD J. SPAETH AND JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL:

ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT 7 (1999).

As, for, example, Chief Justice Rehnquist suggested he might have been doing in voting

in Dickerson v. United States not to overrule Miranda. Supra, text accompanying n. 51.

Id. at 315.

See text accompanying n. 11.

Monaghan, supra n. 4.

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