The Supreme Court's Overruling of Constitutional Precedent: An Overview
Released: 2005-11-29T00:00:00

In General

The Supreme Court has overruled 228 of its own decisions over the years, and the mostcontroversial of these decisions involved constitutional interpretation. (1) How the Supreme Courtexplains 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 decidinga case, ordinarily it will apply that same principle in future cases with substantially similarfacts. (3) The general ruleof stare decisis is not an absolute rule, however; the Court recognizes the need on occasion to correctwhat are perceived as erroneous decisions or to adapt to changed circumstances. In deciding whetherto overrule precedent the Court takes a variety of approaches and applies a number of differentstandards, many of them quite general and flexible in application. As a result, the law of staredecisis in constitutional decision making has been called amorphous and manipulable, and has beencriticized as incoherent. (4)

Adherence to precedent is a fundamental principle of jurisprudence that promotes certaintyin the law and uniformity in the treatment of litigants, and thereby prevents arbitrariness. (5)

The obligation to follow precedent begins withnecessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicialsystem could do society's work if it eyed each issue afresh in every case that raised it. Indeed, thevery concept of the rule of law underlying our own Constitution requires such continuity over timethat a respect for precedent is, by definition, indispensable. (6)

Stare decisis is not a constitutional command; as Justice Frankfurter wrote, " stare decisis isa principle of policy and not a mechanical formula of adherence to the latest decision." (7) The doctrine reflects a policyjudgment that "in most matters it is more important that the applicable rule of law be settled than thatit be settled right." (8) Asafety valve is deemed necessary, however. In some instances it becomes important to the Court tocorrect an earlier interpretation that it views as erroneous or no longer viable. Although mostJustices agree that error correction should be the exception to the rule, defining the circumstancesunder which a decision should be overruled is a difficult task. An inconsistent approach by the Courtin resolving the tension between the opposing goals of continuity and error correction can itselfcreate uncertainty and unpredictability.

The Court often explains that it is less reluctant to overrule a decision that involvesconstitutional interpretation rather than interpretation of a statute.

[I]n cases involving the Federal Constitution, wherecorrection through legislative action is practically impossible, this Court has often overruled itsearlier 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 alsoin the judicial function. (9)

Nonetheless, when justifying an overruling the Court usually looks for something in addition to itsbelief that a case was wrongly decided. "Although adherence to precedent is not rigidly required inconstitutional cases, any departure from the doctrine of stare decisis demands specialjustification." (10)

"Special justification" can be one or more of several different considerations, and how stronga justification the Court requires can vary with the importance of the precedent as well as with theimportance the Court attaches to overruling it. The decision whether to adhere to a constitutionaldecision "is a complex and difficult one . . . that must account for a variety of often competingconsiderations." (11) Inreexamining a constitutional precedent, the Court looks to "a series of prudential and pragmaticconsiderations designed to test the consistency of overruling a prior decision with the ideal of therule of law, and to gauge the respective costs of reaffirming and overruling a prior case." (12) The Court has looked tothe following general considerations in overruling precedent.

[We] may ask whether the rule has proven to beintolerable 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 theconsequences of overruling and add inequity to the cost of repudiation, e.g., United States v. TitleIns. & Trust Co. , 265 U.S. 472, 486 (1924); whether related principles of law have so far developedas to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLeanCredit Union , 491 U.S. 164, 173-174 (1989); or whether facts have so changed, or come to be seenso 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 atthe heart of a major national controversy. (14) In considering and rejecting a request that it overrule itslandmark abortion decision, Roe v. Wade , (15) the Court looked to the following factors.

[W]e may inquire whether Roe 's central rule has beenfound unworkable, whether the rule's limitation on state power could be removed without seriousinequity to those who have relied upon it or significant damage to the stability of the societygoverned by it; whether the law's growth in the intervening years has left Roe 's central rule adoctrinal anachronism discounted by society; and whether Roe 's premises of fact have so far changedin the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable indealing 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 hascome of age free to assume Roe 's concept of liberty in defining the capacity of women to act insociety, 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 otherpersonal liberty decisions, reliance on Roe 's precedent was viewed as unlikely to lead to erroneousdecisions; and, although "time [had] overtaken some of Roe 's factual assumptions," no changedcircumstances had undermined Roe 's central holding. (18) The Casey Court emphasized that "a decision to overrule shouldrest 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 thana change in our membership invites the popular misconception that this institution is little differentfrom the two political branches of Government. No misconception could do more lasting injury tothis 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 majoroverruling decisions of the Twentieth Century, West Coast Hotel v. Parrish (1937) (21) and Brown v. Board ofEducation (1954). (22) In West Coast Hotel , the Court overruled its 1923 decision in Adkins v. Children's Hospital , (23) which had invalidated astate minimum wage law for adult women. West Coast Hotel was not a narrow ruling, but rather ineffect reversed the whole line of Lochner decisions premised on acceptance of laissez-faireeconomics and relying on employers' liberty of contract to restrict social welfare legislation. (24) The nation's experienceduring the Great Depression had changed perceptions between Adkins and West Coast Hotel . As theCourt put it, reconsideration was "imperative" due in part to "the economic conditions which havesupervened, and in the light of which the reasonableness of the exercise of the protective power ofthe state must be considered." (25) Although also grounding its decision in due process doctrine andin correcting what it viewed as an erroneous interpretation in Adkins , the Court took judicial noticeof "the unparalleled demands for relief which arose during the recent period of depression," andconcluded 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 itresponded to it. (27) TheCourt 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 inherentlyunequal. (28) The Courtjustified its changed interpretation by changing its conclusion about the stigmatizing effects ofsegregation. "Whatever may have been the extent of psychological knowledge at the time of Plessyv. Ferguson , this finding [that racial segregation stigmatizes minority children] is amply supportedby modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected." (29) The Court cited academicstudies, rather than general societal acceptance or experience, for the "modern authority" from whichits "psychological knowledge" was derived. (30)

As the Casey Court synthesized Brown and West Coast Hotel , "[e]ach rested on facts, or anunderstanding of facts, changed from those which furnished the claimed justifications for the earlierconstitutional resolutions." Because "each case was comprehensible as the Court's response to factsthat the country could understand," the decisions were also "defensible, not merely as the victoriesof one doctrinal school over another by dint of numbers . . . , but as applications of constitutionalprinciple 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 1986decision, 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 changedunderstanding of facts. Rather, the Court in Lawrence asserted that the Court in Bowers v.Hardwick (33) hadmisread its own precedent and had too narrowly defined the liberty interest at stake. The Courtjustified 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 . . . ofthe sort that could counsel against overturning its holding." (36) Dissenting Justice Scaliachallenged these conclusions, and suggested that Roe "satisfies these conditions to at least the samedegree as Bowers ." (37)

Other recent overruling decisions that received considerable public attention barredapplication of the death penalty to mentally retarded persons and to juveniles. In 1989 the Court hadrefused to hold that execution of a mentally retarded individual, (38) or of an individual whowas 16 or 17 at the time of his offense, (39) violated the Eighth Amendment; in 2002, however, the Courtreversed its conclusion about execution of the mentally retarded, (40) and in 2005 it did so forjuveniles. (41) Thesedecisions 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 thementally retarded or of juveniles had not been "unusual" in 1989, it had become so by 2002 and2005, 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 itsfocus. Other factors, such as reliance or workability, may carry the day. For example, lack ofworkability was the principal reason cited by the one Justice whose changed vote required the Courtto reverse itself on a federalism issue for the second time in less than a decade. Justice Blackmun,writing for a five-to-four majority in Garcia v. San Antonio Metropolitan Transit Authority , (44) declared that the test theCourt had formulated nine years earlier for determining whether Congress could impose theminimum wage and overtime requirements of the Fair Labor Standards Act on state governments-- insulating states when performing "traditional governmental functions" -- was not only amisinterpretation of the Constitution, but had proved "unworkable." (45) Lower courts hadstruggled without success to apply the test, the Court itself had disclaimed a "static, historical"approach to defining "traditional" governmental functions, (46) and the Court hadabandoned a somewhat analogous tax immunity distinction between governmental and proprietaryfunctions. (47)

The other side of the coin, of course, is that if a decision has proved workable in practice (andif its theoretical underpinnings have not been eroded), Justices may be unwilling to overrule itdespite disagreement on the merits. For example, in refusing to overrule its landmark decision in Miranda v. Arizona , (48) the Court in Dickerson v. United States (49) pointed to the fact that Miranda warnings had become"embedded in routine police practice to the point where the warnings have become part of ournational culture." (50) Chief Justice Rehnquist's opinion for the Court stated that "principles of stare decisis weigh heavilyagainst overruling" Miranda "[w]hether or not we would agree with Miranda 's reasoning and itsresulting rule, were we addressing the issue in the first instance." (51)

Reliance interests can sometimes tip the scales against overruling. In declining to overrulea 25-year-old precedent interpreting the Commerce Clause as prohibiting a state from collecting usetaxes on out-of-state mail order businesses that do not have a physical presence within the state, theCourt stated that the rule had "engendered substantial reliance and has become part of the basicframework of a sizeable industry." (52)

Occasionally the Court overrules precedent with only minor emphasis on "specialcircumstances" justifying departure from stare decisis . In Payne v. Tennessee , (53) for example, the Courtoverruled two relatively recent decisions (54) that had barred consideration of victim impact statements duringcapital sentencing. The Payne Court asserted that departure from precedent is justified "whengoverning decisions are unworkable or are badly reasoned." (55) The Court went on todistinguish property and contract rights cases "where reliance interests are involved" from "casessuch 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 Constructorsv. Pena (57) assertedthat correcting error can itself sometimes be a "special circumstance" that justifies overrulingprecedent. That occasion arises, Justice O'Connor asserted for the Court, when the precedent at issuewas 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 establisheddoctrine." (58) Thedecision that Adarand overruled, Metro Broadcasting, Inc. v. FCC , (59) had held, in effect, thatCongress had greater leeway than the states in adopting remedial racial preferences; thisinterpretation, the Adarand Court asserted, "undermined important principles . . . established in a lineof cases dating back over 50 years." (60)

The theory that departure from well-established doctrine renders a precedent subject tooverruling was not new with Adarand . Rather, the Adarand opinion found support in several earlierdecisions said to rest on the same principle.

In United States v. Dixon , 509 U.S. 688 (1993), weoverruled the case of Grady v. Corbin , 495 U.S. 508 (1990), because Grady "lack[ed] constitutionalroots" 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 from1866 to 1960." Solorio , supra , at 439-441, 450-451. And in Continental T. V., Inc. v. GTE SylvaniaInc. , 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 departure" from precedent, and of which "[t]he greatweight of scholarly opinion ha[d] been critical." (61)

It may be, however, that Payne and Adarand put greater emphasis on the precedent's departure fromwell-established doctrine, and less emphasis any other justifications for overruling. (62)

Both Dixon and Adarand overruled relatively recent decisions. As Justice O'Connor pointedout in her concurring opinion in Adarand , a quick overruling of a precedent that departed from itsantecedents does not "depart from the fabric of the law [but rather] restore[s] it," and also minimizesthe opportunity for reliance that could deter overruling. (63)

Although the newness of a precedent is sometimes seen as reducing its immunity fromoverruling, the oldness of a precedent does not always prevent its overruling. For example, the Courtin Erie Railroad v. Tomkins (64) overruled Swift v. Tyson , (65) a decision thenalmost 100years old, on the basis that its recognition of a federal common law was unconstitutional, and hadled to undesirable results in commercial activities. There are numerous other instances of the Court'soverruling of hoary precedent. (66) Indeed, the older a precedent is, the more possibility there is thatits 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 engenderedreliance interests, and its overruling may even 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 aprecedent that embodies the Court's reliance on the Constitution to settle a "national controversy."

[W]hen the Court does act in this way, its decisionrequires an equally rare precedential force to counter the inevitable efforts to overturn it and tothwart its implementation. . . . [O]nly the most convincing justification under accepted standards ofprecedent could suffice to demonstrate that a later decision overruling the first was anything but asurrender to political pressure, and an unjustified repudiation of the principle on which the Courtstaked its authority in the first instance. So to overrule under fire in the absence of the mostcompelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyondany serious question. (69)

One of the reasons that there is so little consistency in the Court's approach to overrulingdecisions is that individual Justices "individually . . . balance their normative views on how theconstitutional provision at issue should be interpreted and their perceptions of the practical needs tosubmerge 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 thefact that an individual Justice may strike a different balance between stare decisis and errorcorrection depending upon what the issue is and how strongly that Justice feels about the "error" sideof the balance. And of course individual Justices occasionally change their minds as to theworkability of precedents. (71)

Also, a Justice's judicial philosophy can affect the balance. An originalist presumably wouldfavor error correction over preservation of precedent regardless of how well established thatprecedent 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 ourcases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its originalmeaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on thegovernment'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 PostFacto 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 theEleventh Amendment, set forth in 1890 in Hans v. Louisiana , (74) and reinforced in a numberof the Court's federalism decisions over the last several decades, as barring federal court jurisdictionover suits brought by citizens against their own state. The Amendment by its terms applies only tosuits brought against a state by citizens of another state, but the Court has interpreted the provisionas 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 flawedpremises, misguided history, and an untenable vision of the needs of the federal system it purportsto protect, I believe that the Court should take advantage of the opportunity provided by this case toreexamine the doctrine's historical and jurisprudential foundations. Such an inquiry would revealthat the Court . . . has taken a wrong turn. (75)

On the current Court, Justices Stevens, Souter, Ginsburg, and Breyer have continued this argumentdespite the fact that the Court majority has continued to apply and extend the sovereign immunityprinciple reflected by Hans . (76)

For years Justices Brennan and Marshall voted against imposition of the death penalty on thebasis of their views that the death penalty "is in all circumstances cruel 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? Oneextensive study of the subject suggests that the critical question is whether "precedent actuallycause[s] justices to reach decisions that they otherwise would not have made." (78) This can be verified ifJustices voice disapproval of precedent but nonetheless vote to uphold it. (79) Spaeth and Segal'sconclusion 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 tobear out Justice Souter's observation, quoted above, that the decision whether to overrule precedentinvolves "a variety of often competing considerations" (81) (including competing perspectives among the Justices). Staredecisis is always one such consideration when the Court decides whether to overrule precedent. Butbecause the Court does not appear to have developed a "coherent or stable conception of theappropriate role of precedent in constitutional adjudication," (82) it is difficult to predictwhen the Court will rely on stare decisis and when it will depart from it.