The Supreme Court’s Overruling of Constitutional Precedent
Released: 2018-09-24T00:00:00

Introduction

By exercising its power to determine whether federal and state government actions are constitutional, the Supreme Court has developed a large body of judicial decisions, or "precedents," interpreting the Constitution. Rules and principles established in prior cases inform the Court's future decisions. The role that precedent plays in the Court's decisions on highly controversial issues has prompted debate over whether the Court should follow or overrule rules it established in prior decisions. Such questions underscore the challenges the Court faces in maintaining stability in the law by adhering to precedent under the doctrine of stare decisis so that parties may rely upon its decisions, while at the same time correcting prior decisions that rest on faulty reasoning, unworkable standards, abandoned legal doctrines, or outdated factual assumptions.

One notable example of a precedent that has prompted significant debate is the Supreme Court's 1992 decision in Planned Parenthood v. Casey . In Casey, a plurality of Justices reaffirmed the core aspects of the Court's earlier holding in Roe v. Wade that a woman has a protected constitutional liberty interest in terminating her pregnancy prior to fetal viability, stating that the essential holding of Roe "should be retained." But the plurality's opinion in Casey suggests that several Justices who voted to reaffirm Roe had significant doubts about the quality of its reasoning. Despite these doubts, the Casey plurality decided that other considerations required reaffirming Roe 's central holding, including societal reliance on a fundamental constitutional right; concern for the Court's legitimacy as an institution; and the principle that the Court should adhere to rules in its prior decisions (i.e., stare decisis), particularly when a case implicates a highly divisive issue like abortion.

Although the Supreme Court's decision to retain a precedent may prompt significant debate, the Court's overruling of precedent can also be controversial, as the Court's 2010 decision in the campaign finance regulation case Citizens United v. FEC illustrated. That case established that the First Amendment prohibits governments from restricting independent expenditures on political speech related to an election campaign by corporations, labor unions, and other organizations. In reaching this result, the Court overturned its decision in Austin v. Michigan State Chamber of Commerce , which had held that the government could prohibit political speech funded from a corporation's general treasury fund based on the fact that the speaker was a corporation. The Court's overruling of Austin in Citizens United sparked debate about whether the Court should have adhered more strictly to the principle of stare decisis.

Debate over the role that stare decisis plays in the Supreme Court's decision making continued during the 2017-2018 term as the Justices overruled four longstanding precedents. For example, in Janus v. American Federation of State, County, and Municipal Employees, the Court overturned its 1977 holding in Abood v. Detroit Board of Education and determined that laws that require public employees to pay "fair share" fees to the union designated to represent their bargaining unit, even if the employees are not members of the union, violated the First Amendment by compelling speech on matters of public concern. And in South Dakota v. Wayfair , the Court overturned holdings in two earlier cases, concluding that the Commerce Clause does not restrict states from requiring retailers that lack a physical presence in the state to collect and remit taxes on sales made to state residents.

In light of these developments, this report examines how the Supreme Court determines whether to overrule its prior decisions on questions of constitutional law. It provides an overview of the doctrine of stare decisis, under which a court generally follows rules adopted in prior decisions in future cases with arguably similar facts. It discusses how Justices who have adopted textualism and originalism as philosophies for interpreting the Constitution handle conflicts between precedent and their judicial philosophies. Finally, the report examines various factors that the Court weighs when determining whether to overrule or limit its precedents interpreting the Constitution, providing examples from the Court's recent jurisprudence.

Understanding stare decisis may assist the Senate in evaluating the judicial philosophy of nominees to the federal courts. For example, in July 2018, President Donald J. Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit to fill retiring Justice Anthony M. Kennedy's seat on the Supreme Court of the United States. Members of Congress, the public, and legal scholars expressed interest in Judge Kavanaugh's views on stare decisis, as they could potentially provide insight into his future decisions in important areas of constitutional law, including abortion, affirmative action, labor law, and separation of powers, among others.

The Appendix to this report lists Supreme Court decisions on constitutional law questions that the Court has overruled specifically during its more than 225-year history.

The Doctrine of Stare Decisis

Stare decisis , which is Latin for "to stand by things decided," is a judicial doctrine under which a court follows the principles, rules, or standards of its prior decisions or decisions of higher tribunals when deciding a case with arguably similar facts. The doctrine of stare decisis has "horizontal" and "vertical" aspects. A court adhering to the principle of horizontal stare decisis will follow its prior decisions absent exceptional circumstances (e.g., the Supreme Court following its decisions unless they have become too difficult for lower courts to apply). By contrast, vertical stare decisis binds lower courts to follow strictly the decisions of higher courts within the same jurisdiction (e.g., a federal court of appeals must follow the decisions of the U.S. Supreme Court, the federal court of last resort). This report addresses how the U.S. Supreme Court determines whether to overrule its prior decisions. Thus, this report discusses only horizontal stare decisis.

The Supreme Court applies the doctrine of stare decisis by following the rules of its prior decisions unless there is a "special justification"—or, at least, "strong grounds"—to overrule precedent. In adopting this approach, the Court has rejected a more formalistic view of stare decisis that would require it to adhere to its prior decisions regardless of the merits of those decisions or the practical implications of retaining or discarding precedent. Instead, while the Court has stated that its precedents are entitled to respect and deference, the Court considers the principle of stare decisis to be a discretionary "principle of policy" to be weighed and balanced along with its views about the merits of the prior decision and several pragmatic considerations when determining whether to retain precedent in interpreting the Constitution or deciding whether to hear a case. The Court may avoid having to decide whether to overrule precedent if it can distinguish the law or facts of a prior decision from the case before it or, rather, limit the prior decision's holding so that it is inapplicable to the instant case.

Brief History of the Doctrine

The doctrine of stare decisis in American jurisprudence has its roots in 18 th century English common law. In 1765, the English jurist William Blackstone described the doctrine of English common law precedent as establishing a strong presumption that judges would "abide by former precedents, where the same points come again in litigation" unless such precedents were "flatly absurd or unjust" in order to promote stability in the law. And the Framers of the U.S. Constitution, who conferred the "judicial power" of the United States on the Supreme Court and lower federal courts, echoed Blackstone in their writings during the late 18 th century, favoring judges' adherence to judicial precedent because it limited judges' discretion to interpret ambiguously worded provisions of written law. For example, writing in the Federalist during the debates over adoption of the Constitution at the end of the 18 th century in an essay addressing concerns about judicial power, Alexander Hamilton argued that courts should apply precedent to prevent judges from having unbounded discretion to interpret ambiguous legal texts. However, historical sources provide only limited insight into the Founders' views on stare decisis, and it is unclear whether Hamilton was referring to the presumption that a court should adhere to its own prior decisions or, rather, those of higher tribunals.

Despite the Founders' general approval of judges following precedent, at least one Framer, James Madison, acknowledged that courts should occasionally make exceptions to the doctrine of stare decisis for certain policy reasons. During the tenure of Chief Justice John Marshall in the early 1800s, the Supreme Court combined a strong preference for adhering to precedent with a "limited notion of error correction" when precedents had been eroded by subsequent decisions, were "premised on an incomplete factual record," or were clearly in error. Another characteristic of these early decisions is that the Court was reluctant to overrule prior decisions when doing so would upset commercial reliance interests (e.g., precedents concerning matters of property or contract law). Although the Court has only recently sought to enumerate the factors it considers when determining whether to overrule precedent, the Court has long sought to strike a balance between maintaining a stable body of consistent jurisprudence while at the same time preserving some "mechanism for error correction."

Reasons for the Supreme Court's Adherence to Principles of Stare Decisis

The Supreme Court has often stated that following its prior decisions supports the legitimacy of the judicial process and fosters the rule of law by encouraging stability, certainty, predictability, consistency and uniformity in the application of the law to cases and litigants. As Justice Lewis Powell once remarked, "the elimination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is." Thus, one view is that following the carefully considered decisions of past Justices by adhering to principles of stare decisis supports the Court's role as a careful, unbiased, and predictable decisionmaker that decides cases according to the law rather than the Justices' individual policy preferences.

Another reason for adhering to stare decisis is to save judges and litigants time by reducing the number and scope of legal questions that the court must resolve in litigation (e.g., whether the Court may declare a federal law unconstitutional—a question settled in the 1803 decision of Marbury v. Madison ). In a similar vein, the Court has suggested that having a precedent established on a particular question of law allows for the quick and efficient dismissal of lawsuits that can be resolved through recourse to rules in prior decisions, which may encourage parties to settle cases out of court and thereby enhance judicial efficiency.

Reasons for the Supreme Court's Overruling of Precedent

Arguing against a strict adherence to the principle of stare decisis, some Justices and legal commentators have noted that overruling incorrect precedents may occasionally be necessary to rectify egregiously wrong or unworkable decisions or to account for changes in the Court's or society's understandings of the facts underlying a legal issue (e.g., the changed understanding of the stigmatic effect of racial segregation in public schools). Critics of strict adherence to stare decisis have also argued that the Court's application of the doctrine in constitutional cases has been unpredictable, has been based on ideology, has lacked a basis in the Constitution, and has often been used to shield the Court's errors from correction, hurting the Court's legitimacy. Consequently, some Justices and scholars have argued that when a precedent conflicts with the proper understanding of the Constitution, Justices should follow the Constitution and overrule incorrect precedents instead of adhering to mistaken interpretations by past Justices.

Applying the Doctrine in Constitutional Adjudication

The Supreme Court has established special rules for applying stare decisis in constitutional cases. During the twentieth century, the Court adopted a weaker form of stare decisis when deciding cases that implicated a prior interpretation of the Constitution rather than a previous interpretation of a federal statute. The Court has sought to justify this approach on the grounds that Congress may amend federal laws to address what it deems to be erroneous judicial interpretations of statutes, whereas amending the Constitution to overturn a Supreme Court precedent is much more difficult. In fact, in the history of the United States, only five Supreme Court precedents have been overturned through constitutional amendment. Despite the Court's assertion that it applies a weaker form of stare decisis in constitutional cases, the Court has in the last couple of decades still specifically required a "special justification" or at least "strong grounds" for overruling constitutional precedents.

Originalism, Textualism, and Stare Decisis

Another notable issue surrounding stare decisis is the difficulty that a judge may face in adhering to the principle of stare decisis when application of his or her philosophy for interpreting the Constitution (e.g., originalism or pragmatism) in a particular case would produce a result contrary to existing precedent. Although any method for interpreting the Constitution may conflict with precedent, debate has often focused on conflicts between judicial precedent and interpretation of the Constitution based on its text or its original meaning—that is, the meaning of its words as understood by some segment of the populace alive at the time of the Founding. Some proponents of textualism and original meaning as methods of constitutional interpretation object to the use of judicial precedent that conflicts with the text of the Constitution and its original meaning, because it favors the views of the Supreme Court over the views of those who ratified the Constitution, thereby allowing mistaken interpretations of the Constitution to persist.

Nevertheless, textualists and originalists may adhere to precedent for pragmatic reasons, such as when doing so would promote stability in the law. For example, Justice Scalia, a solid textualist and originalist, followed longstanding precedent allowing for the Supreme Court to incorporate rights specifically enumerated in the Bill of Rights against state governments even though he harbored significant doubts that such incorporation comported with the original meaning of the Constitution. One example of this approach is Justice Scalia's concurrence in McDonald v. City of Chicago , a case in which the Supreme Court considered whether the city of Chicago could, consistent with guarantees in the Second and Fourteenth Amendments, ban the possession of handguns in the home. Two years earlier, the Court in District of Columbia v. Heller, had determined that the Second Amendment's protection of the "right of the people to keep and bear arms" extended to all citizens and was not merely related to, or conditioned on, service in a militia, striking down a similar D.C. law. But the City of Chicago was not directly subject to the Second Amendment because it was part of a state rather than a federal enclave like the District. Nevertheless, a 5-4 majority of the Court held, in line with the Court's precedents, that the Second Amendment applied to the state and its subdivisions through the Fourteenth Amendment's Due Process Clause because the Second Amendment protected a fundamental right that was necessary to the American scheme of "ordered liberty" and was rooted in American traditions, and, therefore, its incorporation against state governments was constitutional. Justice Scalia concurred with this result, stating, "Despite my misgivings about substantive due process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights because it is both long established and narrowly limited." Thus, Scalia demonstrated a willingness to make a pragmatic exception to his philosophy for interpreting the Constitution by adhering to a longstanding line of precedents that had become "woven in the fabric of the law" when it would serve the practical objective of maintaining stability in the Court's jurisprudence.

Factors the Supreme Court Considers When Deciding Whether to Overrule Constitutional Precedent

As noted, in recent decades, the Supreme Court has often stated that a decision to overrule precedent must be based on some special justification—or, at least "strong grounds"—that extends beyond the Court's mere disagreement with the merits of the prior decision's reasoning. In this vein, the Justices have expressed some concern that the Court's legitimacy might suffer if it constantly overruled its prior decisions based on such disagreements. Consequently, when deciding whether to overrule a past decision in a constitutional case, the Court has historically considered several "prudential and pragmatic" factors that seek to foster the rule of law while balancing the costs and benefits to society of reaffirming or overruling a prior holding. The Court's 2018 decision in Janus v. American Federation of State, County, and Municipal Employees sets forth a nonexhaustive list of these factors:

the quality of [the precedent's] reasoning, the workability of the rule it establishes, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.

This section briefly discusses examples from the Supreme Court's jurisprudence that illustrate the Court's use of each of these factors in its analysis: (1) the quality of the precedent's reasoning; (2) the workability of the precedent's rule or standard; (3) the precedent's consistency with other related decisions; (4) factual developments since the case was decided; and (5) reliance by private parties, government officials, courts, or society on the prior decision.

Quality of the Precedent's Reasoning

The first factor that the Supreme Court may consider when determining whether to reaffirm or overrule a prior decision is the quality of the Court's reasoning in the prior case. However, it does not appear that the Court's disagreement with a prior case's reasoning is enough by itself to overrule that case.

An example of the Supreme Court overruling precedent because it had significant disagreements with its reasoning is West Virginia State Board of Education v. Barnette. In that case, the Court held that the First Amendment prohibited a state from enacting a law compelling students to salute the American flag. In doing so, the Court overruled its three-year-old decision in Minersville School District v. Gobitis , which had upheld a state's flag-salute requirement. In Barnette, Justice Robert Jackson, writing for the majority, offered a point-by-point refutation of Gobitis ' reasoning. For example, in addressing the Gobitis Court's argument that legislatures rather than courts were the best forum to hear disputes over the imposition of the flag-salute requirement, the Barnette majority noted that the Bill of Rights had removed certain subjects, such as freedom of speech, from the political arena and committed resolution of disputes concerning these issues to the judiciary. And in rejecting the core argument of Gobitis that compelled flag salutes were necessary to achieve national unity, Jackson invoked the unique character of American constitutional government, which in contrast to authoritarian regimes, eschewed the use of government coercion as a means of achieving national unity. The Court's belief that Gobitis rested on flawed reasoning thus played a key role in its overturning of that precedent.

A case from the 2017-2018 term in which the Court overturned precedent partly because of the purportedly poor quality of its reasoning is Janus v. American Federation of State, County, and Municipal Employees . In that case the Court overturned its 1977 holding in Abood v. Detroit Board of Education by determining that a government, by requiring public employees, who were not members of a union designated to represent their bargaining unit, to pay "fair share" fees to the union, violated the First Amendment by compelling speech on matters of public concern. The Court in Janus rested its decision to overrule Abood on several grounds, including the unworkability of Abood 's standard for distinguishing union expenditures that could be legally charged to employees from those that could not and a lack of reliance on the decision. However, it began its analysis with a discussion of the merits of Abood .

Characterizing Abood as "poorly reasoned," the Supreme Court explained that the Abood decision permitting "fair share" fee arrangements improperly rested upon Court precedents involving government authorization of private sector collective bargaining agreements instead of government compulsion of public sector employees' payment of "fair share" fees. Moreover, the Janus Court stated, Abood accorded too much deference to the government's asserted interest in achieving "labor peace" by requiring employees to pay public sector fees and gave too little consideration to fundamental free speech rights. These merits-based reasons, among others, motivated the Court's decision to discard Abood .

Workability of the Precedent's Rule or Standard

Another factor that the Supreme Court has considered when determining whether to overrule a precedent is whether a rule or standard that the prior case establishes for determining the constitutionality of a government action is too difficult for lower federal courts or other interpreters to apply and is thus "unworkable."

An example of a case in which the Court overturned a precedent because its rule was unworkable is Garcia v. San Antonio Metropolitan Transit Authority . In Garcia , the Court considered a key question implicating the relationship between the federal and state governments: whether Congress could impose the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) on employees of the San Antonio Metropolitan Transit Authority, a municipally owned and operated mass-transit system. Garcia raised the question of whether Congress's exercise of its Commerce Clause power in FLSA unconstitutionally impinged on state sovereignty—a question the Court had attempted to answer nine years earlier in National League of Cities v. Usery . In Usery, the Court had developed a test for when state activities qualified for immunity from congressional regulation under the Commerce Clause, determining that Congress lacked authority to regulate state employees' working conditions when the state employees performed activities in "areas of traditional government functions."

But a 5-4 majority of the court in Garcia determined that Usery 's test was unworkable because it was difficult for lower courts to apply consistently. The Court stated that Usery "did not offer a general explanation of how a 'traditional' function is to be distinguished from a 'nontraditional' one. Since then, federal and state courts ha d struggled with the task, thus imposed by the Court, of identifying a traditional function for purposes of state immunity under the Commerce Clause ." The Court thus discarded Usery 's test and further held that Congress could, consistent with the Constitution, impose wage and hour requirements on state employees.

As noted, more recently, in Janus, the Court overruled Abood 's holding that the government could constitutionally require public employees to pay fees to a union, even if the employees were not members of the union, so long as those fees qualified as "chargeable" union expenses under a three-part test intended to balance governments' interests in "labor peace" with the First Amendment free speech rights of employees. The Abood test examined whether: (1) the expenses were "germane to collective bargaining"; (2) were "justified by the government's labor-peace and free-rider interests"; and (3) did "not add significantly to the burden on free speech." Noting that " Abood 's line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision," the Court characterized the Abood test as unworkable because the unclear standard left judges with too much discretion and resulted in unpredictable outcomes concerning the permissibility of compelled payment of union fees. The Abood test's unworkability was one reason that the Court chose to overrule that precedent.

Whether the Precedent Is Inconsistent with Related Decisions

Another factor the Supreme Court may consider is whether the precedent is inconsistent with other Court decisions on similar matters of constitutional law. One manner in which a precedent may become inconsistent with related decisions is when its legal foundation, including its reasoning, principles, or rules, has been subsequently eroded by later decisions. In addition, the Court has occasionally considered whether a precedent should be overruled because it is a recent outlier among the Court's decisions by examining the precedent's consistency with past decisions and determining whether overruling the case would "restore" coherency in the law.

An example of the Court overruling a prior decision because it had been eroded by subsequent case law is Janus 's overruling of Abood . In overruling Abood 's determination that the government could require public employees to pay certain fees to a union, the Janus Court noted that Abood had become inconsistent with the Court's First Amendment cases. In particular, subsequent decisions of the Court had criticized the Abood Court for failing to scrutinize a significant restriction on employees' First Amendment rights sufficiently, as required by more recent Court jurisprudence examining various laws compelling speech or association. In addition, the Court determined that Abood was inconsistent with a related line of subsequent cases "holding that public employees generally may not be required to support a political party." Consequently, the Court deemed Abood 's First Amendment analysis to have been eroded by several of its subsequent decisions.

In other cases, the Supreme Court may overrule a recent decision that it deems an outlier in order to restore an older line of precedents. An example is Ad arand Constructors, Inc. v. Peña. In Adarand, the Court considered whether the federal government violated a subcontractor's equal protection rights under the Fifth Amendment's Due Process Clause when the government provided financial incentives for prime federal contractors to award subcontracts to businesses owned by minorities, such as racial minorities. The Court held, contrary to its earlier decision in Metro Broadcasting, Inc. v. FCC , that the Fifth Amendment does not impose a lesser duty on the federal government than the Equal Protection Clause of the Fourteenth Amendment does on state governments, which meant that the federal government's racial classifications are subject to the most stringent form of review (i.e., strict scrutiny). The Court characterized the overruled Metro Broadcasting case as a recent departure from the equal protection principles of a long line of prior cases that stood for the principle that the same equal protection obligations apply to federal, state, and local governments. The majority wrote, "By refusing to follow Metro Broadcasting, then, we do not depart from the fabric of the law; we restore it."

Sometimes, the Justices may disagree over which line of precedents the Court should retain, and which line of precedents it should overrule or ignore. For instance, in Lawrence v. Texas , the Court struck down a Texas law that banned private, consensual same-sex sexual activity as violating the Due Process Clause of the Fourteenth Amendment. In doing so, the Court held that the concept of liberty in that clause "presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

Justice Kennedy's opinion for the majority overruled a prior decision, Bowers v. Hardwick , which had upheld a Georgia law banning similar sexual conduct. Kennedy's opinion characterized Bowers as inconsistent with the Court's subsequent 1992 decision in Casey reaffirming abortion rights and its 1996 decision in Romer v. Evans , which struck down Colorado legislation removing protections for homosexuals from state antidiscrimination laws as violating the Fourteenth Amendment's Equal Protection Clause. Kennedy's opinion stated that the Casey and Romer decisions stood for the notion that the Fourteenth Amendment's Due Process Clause protects personal autonomy to make decisions related to "marriage, procreation, contraception, family relationships, child rearing, and education." The Court thus viewed Bowers as wrongly decided in part because it was inconsistent with the Court's subsequent jurisprudence. A dissenting Justice Scalia strongly disagreed, characterizing Casey and Romer as outliers whose legal foundations had been eroded by a 1997 case holding that only "fundamental rights" that are "deeply rooted in [the] Nation's history and tradition" qualified for enhanced protection under the Due Process Clause. The majority and dissent in Lawrence thus disagreed over whether the Court had "restored" the law or, rather, departed from it, by overruling Bowers.

Whether There Is a Changed Understanding of Relevant Facts

The Supreme Court has also indicated that changes in how the Justices and society understand the facts underlying a prior decision may undermine the authoritativeness of a precedent, leading the Court to overrule it. In Casey , the plurality opinion pointed to two major examples from the Court's twentieth-century jurisprudence that it stated had demonstrated the occasional necessity of overruling a prior decision based on subsequent factual developments. In the first case from 1937, West Coast Hotel v. Parrish , the Court effectively overturned precedents that had struck down as unconstitutional state laws instituting a minimum wage or maximum working hours for employees, reversing its prior holdings that these laws violated employers' freedom to contract guaranteed by the Fourteenth Amendment's Due Process Clause. Supposedly dispensing with its earlier acceptance of principles of contractual freedom, the Court in West Coast Hotel held that overruling precedent was necessary in light of the nation's struggles during the Great Depression, stating that "the economic conditions which have supervened" required consideration of the "exercise of the protective power of the state" to institute minimum wage laws. The Court, resting its decision in part on these recent factual developments, concluded that the state could enact legislation to address its concerns about the exploitation of "defenseless" workers with less bargaining power than their employees, as well as the burden on taxpayers to provide for workers denied a living wage.

The Casey plurality's second example of how the Court's overruling of precedent stemmed from changes in factual understandings involved supposed social change rather than economic developments. In the 1954 case of Brown v. Board of Education, the Court held that that a state, in segregating its public school systems by race, violated the Fourteenth Amendment. Specifically, the Court held that the practice of "separate but equal" as applied to schools violated the Equal Protection Clause, a provision that prohibits state governments from depriving their citizens of the equal protection of the law. Brown rejected factual understandings underlying the Court's prior decision in Plessy v. Ferguson , which had upheld the constitutionality of a Louisiana law mandating racial segregation in railway cars, determining that "separate but equal" public accommodations did not violate Thirteenth or Fourteenth Amendment guarantees. The Court in Brown, relying on academic studies, pointed to changes in society's understanding of the stigmatizing effects of racial discrimination in reaching its result, noting that "[w]hatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson , this finding [of racial stigma] is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected." The Court later characterized Brown as having overruled Plessy. Regardless of whether the Casey plurality's account of the Court's decisions in West Coast Hotel and Brown was completely accurate, it is clear that, throughout the Court's history, at least some Justices have considered changes in factual understandings to be a key element in determining whether to retain or overrule precedent.

Factual developments also played a key role in a decision from the 2017-2018 term, South Dakota v. Wayfair , in which the Court overturned its holdings in two earlier cases, determining that the Commerce Clause does not restrict states from requiring retailers that lack a physical presence in the state, such as Internet retailers, to collect and remit taxes on sales made to state residents. In rejecting its precedents to the contrary, the Court noted that since deciding these cases, the economy had changed drastically, with a marked increase in the prevalence and power of Internet access and concomitant increases in retailers selling goods remotely to consumers. As a result, states faced an increased "revenue shortfall" estimated at up to $33 billion per year in sales tax revenue, allegedly traceable to the Court's prior decisions. These drastic changes in the economy required the Court to overturn two of its precedents that had prevented states from taxing such sales.

Reliance on the Precedent

In contrast to the four factors above, which generally ask whether a precedent should be overruled because of some deficiency in its legal or factual underpinnings, the reliance factor asks whether the Supreme Court should retain a precedent, even if flawed, because certain parties would suffer hardship if a case were overruled. This factor considers reliance on the rules and principles contained in the Supreme Court's prior decisions by individuals, companies, or organizations; society as a whole; or legislative, executive, or judicial government officials.

Economic Reliance

Throughout its history, the Supreme Court has often adhered to precedent because of economic reliance interests (i.e., investment of time, effort, or money). The early Court held that economic reliance by businesses or individuals on the Court's precedents should weigh against overruling precedent, particularly in matters of property or contract law. By contrast, although economic reliance may counsel against overturning precedent, the Court has not given much weight to individual reliance on procedural or evidentiary rules.

A recent example of the Supreme Court considering economic reliance when determining whether to overrule precedent is Janus , in which the Supreme Court overturned Abood v. Detroit Board of Education and determined that laws that require public employees to pay "fair share" fees to the union designated to represent their bargaining unit, even if the employees are not members of the union, violated the First Amendment by compelling speech on matters of public concern. In doing so, the Court rejected arguments that public employers and labor unions relied upon Abood allowing compelled payment of fees when negotiating and entering into collective bargaining agreements. The Court stated that reliance was insufficient to save Abood for several reasons, including that free speech rights were of greater importance than reliance interests; the labor contracts would expire in a few years anyway; Abood' s unworkable standard for deciding when a union could charge fees to nonmembers meant that parties should not have relied upon it; and the Court had given notice in its prior decisions that Abood might be overruled by criticizing Abood 's reasoning.

Societal Reliance

In the late twentieth century, the Supreme Court recognized that reliance could be by society as a whole. A prominent example of this type of reliance is the Court's decision in Casey , in which the plurality opinion stated that "for two decades ... people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." The plurality indicated that societal reliance on Roe required retention of its central holding, arguing that the "ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." On the other hand, a dissenting Chief Justice Rehnquist accused the plurality of "having failed to put forth any evidence to prove any true reliance" and having instead relied "solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have 'ordered their thinking and living around' it." As is evident, arguments for retaining precedent based on societal reliance prompted strong debate among the Justices in Casey .

An example of a majority of the Supreme Court adhering to precedent because of societal reliance is the Court's decision in Dickerson v. United States , which addressed the constitutionality of a federal statute governing the admissibility of statements made during police interrogation, a law that functionally would have overruled the 1966 case of Miranda v. Arizona . In striking down the statute, the majority opinion, authored by Chief Justice Rehnquist, declined to overrule Miranda despites doubts about the merits of its reasoning, noting that the 1966 case had "become embedded in routine police practice to the point where the warnings have become part of our national culture."

Although the Court's reference to societal reliance as a justification for retaining precedent may help to preserve precedents that recognize constitutional protection of an individual right, the notion of "cultural" or "societal" reliance has been criticized by some commentators as providing the Court with unbounded discretion to retain or overturn precedent. Indeed, the Supreme Court has not provided significant guidance as to when societal or cultural reliance interests favor overruling precedent and when they do not.

Government Reliance

The Supreme Court's precedents may also foster government reliance. They may provide guidance for officials in the legislative, executive, and judicial branches as to what actions and practices comport with the Constitution. As a result, they may demarcate and illuminate the relationships between the branches of the federal government or the federal government and states. Government reliance has been implicated in some of the Court's most critical, long-standing precedents of major economic importance, such as decisions that adopted a broad view of Congress' power under the Commerce Clause and thereby established the foundation for the modern administrative state and the Court's 1870 decision in Knox v. Lee, which established the constitutionality of Congress authorizing the issuance of paper money as legal tender.

Some Justices have argued that legislators may rely on the Supreme Court's decisions about the constitutionality of certain types of laws when they draft legislation. For example, in Lawrence v. Texas , the Court struck down a Texas law that banned private, consensual same-sex sexual activity as violating the Due Process Clause of the Fourteenth Amendment. Justice Kennedy debated a dissenting Justice Scalia over whether reliance on the Court's earlier decision in Bowers v. Hardwick , which had upheld a law criminalizing similar same-sex activities, required retaining Bowers as precedent. Justice Kennedy argued that there were no relevant reliance interests that counseled against overruling Bowers. In a vigorous dissent, Justice Scalia argued that legislators had relied upon Bowers in enacting numerous laws regulating certain sexual behaviors deemed immoral by the governing majority. Scalia argued that Lawrence called into question the viability of these laws, and that protecting legislative reliance interests merited retention of Bowers .

Executive branch officials also arguably rely on Supreme Court precedents. For instance, in Arizona v. Gant , the Court held that the search-incident-to-arrest exception to the Fourth Amendment's requirement that the government obtain a warrant to search an arrestee's vehicle applied only if the arrestee could access the vehicle at the time of the search so that he could have gained possession of a weapon or destructible evidence or, alternatively, when it was "reasonable to believe that evidence of the offense of arrest might be found in the vehicle." Justice Alito authored a dissent in which he argued that the majority's opinion had effectively overruled New York v. Belton, a case that he characterized as providing police officers more certainty as to the permissibility of searching a vehicle's occupant after arrest. Alito wrote that law enforcement officers had relied on Benton , and that "the Benton rule has been taught to police officers for more than a quarter century. Many searches—almost certainly including more than a few that figure in cases now on appeal—were conducted in scrupulous reliance on that precedent."

And, as noted, judges often rely on precedent, both explicitly by citing to precedent in their opinions, and implicitly, by accepting principles established by precedent, such as the power of judicial review.

Conclusion

The Supreme Court's prior decisions on matters of constitutional law appear to inform the Justices' decisions in future cases. Because these precedents may implicate highly divisive and controversial issues, much debate and litigation has turned on the manner in which the Court determines whether to retain or overrule its prior decisions. Although this debate has often focused on the doctrine of stare decisis, the Court has stated that this doctrine is just one factor, among several others, that it considers when reviewing precedent.

A survey of Court decisions, applying the various stare decisis factors, suggests that it is difficult to predict when the Court will overrule a prior decision. This uncertainty stems from a number of sources, including the fact that the Court has not provided a complete list of factors that it considers when making that determination or explained how it weighs each factor. Furthermore, sometimes a Justice's judicial philosophy may conflict with precedent, potentially requiring a Justice to choose between following his or her philosophy or making a pragmatic exception to it in order to maintain stability in the law.

Although much about how the Supreme Court views precedent remains unclear, the Court's factors for determini ng whether to retain or overrule precedent provide the Justices with significant discretion. As Justice Samuel Alito stated during his confirmation hearings when asked what "special justifications" counsel for overruling precedent:

Well, I think what needs to be done is a consideration of all of the factors that are relevant. This is not a mathematical formula. It would be a lot easier for everybody if it were. But it is not. The Supreme Court has said that this is a question that calls for the exercise of judgment. They have said there has to be a special justification for overruling a precedent. There is a presumption that precedents will be followed. But it is not—the rule of stare decisis is not an inexorable command, and I don't think anybody would want a rule in the area of constitutional law that ... said that a constitutional decision, once handed down, can never be overruled.

Thus, if the Court is unable to distinguish a precedent from the case before it, the Justices, to preserve the Court's legitimacy, generally attempt to strike a delicate balance between maintaining a stable jurisprudence on which parties can rely while preserving sufficient flexibility to correct errors.

Appendix. Overruled Supreme Court Decisions on Matters of Constitutional Law

The table below lists Supreme Court decisions on substantive questions of federal constitutional law that the Court subsequently overruled. The table was compiled by searching the LEXIS database for all Supreme Court decisions that use the word "overrule" in the headnotes, syllabus, or text of the Court's opinion. Decisions supported by a majority of the Court that expressly overruled an earlier decision were listed in the table. The listed cases include decisions identified by the search terms in which the Court partially overruled or otherwise qualified a prior case. These findings were also cross-checked with other sources to ensure that the search had captured any relevant results.

For a decision to be listed as overruled, a majority of the Court must have explicitly stated, in a subsequent decision, that the case has been overruled. Consequently, the table does not include cases that the Court distinguished or limited or cases identified by concurring or dissenting Justices or commentators as overruled, unless such cases have also been expressly overruled by a majority of the Court. The list also does not include cases whose legal foundations have merely been eroded by subsequent decision without explicitly being overruled or that the Court treats as discredited. It also does not include cases in which the Court issued a ruling on the merits after having split evenly on the issue previously. The list does not necessarily reflect the current state of the law.

The table is arranged in chronological order by the date of the overruling decision. For each overruling decision listed, the table gives (1) the name of the overruling decision; (2) the date of the overruling decision; (3) the name of the overruled decision; (4) the date of the overruled decision; and (5) the exact words used by the overruling Court in overturning the earlier decision.