Constitutional Law

The Rights and Wrongs of Overruling Precedent

Despite occasional rhetoric to the contrary, neither conservative nor liberal justices are shy about overruling constitutional precedent they believe to be badly misguided. And that's a good thing.

|The Volokh Conspiracy |

Recent developments at the Supreme Court have helped kick off a new debate over the role of precedent in judicial decision-making. This term, two significant precedents have been overruled by close 5-4 majorities (including in Knick v. Township of Scott, which I analyzed in this post), and another important precedent has been significantly eroded in the Kisor case. The liberal justices fear that the conservative majority might overrule more liberal precedents in the future, and have thus argued for strong adherence to stare decisis in a number of recent opinions. Henry Gass summarizes the debate in an article for the Christian Science Monitor:

As the current court nears the end of its first term with a reliably conservative five-justice majority, that debate [over precedent] has surged back to prominence. Two long-standing precedents have been overturned in 5-4 decisions split along ideological lines. In a climate where the fate of high-profile precedents like Roe v. Wade are uncertain, the justices have been writing at length about how they think the court's approach to handling precedent needs to change….

The Supreme Court has over time developed four factors to consider when overturning precedent: the quality of the past decision's reasoning, its consistency with related decisions, legal developments since the past decision, and reliance on the decision throughout the legal system and society.

When the court last month overruled Nevada v. Hall – a four-decade-old precedent concerning states' immunity from lawsuits in other states' courts – in a 5-4 decision along ideological lines, Justice Stephen Breyer wrote in dissent that none of the four factors justified the majority's reasoning.

"The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it," he wrote. "Today's decision can only cause one to wonder which cases the Court will overrule next…"

The next overrule came last week: a 5-4 decision along ideological lines that scrapped Williamson County v. Hamilton Bank, a 34-year-old interpretation of the Fifth Amendment's Takings Clause. This time, Justice Elena Kagan wrote the dissent.

With Williamson County rooted in decisions from the late 1800s, the opinion "transgresses all usual principles of stare decisis," she wrote, and "smashes a hundred-plus years of legal rulings to smithereens."

I gave my take on this in comments I made, quoted in Gass' article:

Many [past] decisions support the notion that precedents should sometimes be overturned, says Ilya Somin, a professor at George Mason University's Antonin Scalia Law School.

"Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm, and I think it shouldn't," he adds. "There is a serious cost to keeping an error on the books indefinitely when, as a practical matter, the error can only be cured by a Supreme Court decision."

The flexibility built into the doctrine acts as a compromise mechanism, of sorts. While Justice Ruth Bader Ginsburg joined Justice Breyer's and Justice Kagan's dissents criticizing the scrapping of precedents this term, she voted to overturn a long-standing precedent last term and allow states to collect sales tax on online sales.

"For most of the justices the fuzziness may be a virtue more than a defect because it allows them to overrule when they want, and also to appeal to stare decisis when they don't," says Professor Somin.

I simply do not believe that stare decisis will prevent either the liberal or the conservative justices from overruling constitutional precedents they believe to be badly wrong, though both are happy to wave the stare decisis flag whenever precedents they like are imperiled. In most cases, the real source of the dispute is less the theory of stare decisis, than a disagreement over whether the precedent in question was actually wrong to begin with.

The liberal justices who appeal to stare decisis today also to applaud the work of the New Deal-era and Warren courts, both of which overturned numerous longstanding constitutional precedents. Given the opportunity, they would likely happily overrule such precedents as Citizens United and the travel ban case, both much reviled on the left (the latter deservedly so, in my view).

As Gass points out, liberal icon Justice Ruth Bader Ginsburg voted to overturn longstanding precedent in last year's Wayfair decision. This year, she joined with conservative Neil Gorsuch to advocate overruling of many decades of precedent in Gamble v. United States, the double jeopardy/dual sovereignty case.

I believe Justice Ginsburg was right in Gamble, and possibly also in Wayfair. But a consistent champion of stare decisis she is not. Neither are any of the other justices, when push comes to shove, and they get a chance to overrule a constitutional decision they believe to be truly awful. And this attitude strikes me as generally a good thing. I elaborated on the reasons why in more detail here:

The Supreme Court needs to have the power to overturn flawed constitutional precedent, as this is usually the only way to correct wrong constitutional decisions, short of using the extraordinarily difficult amendment process.

If precedent were sacrosanct, the Supreme Court could not have reversed or superseded any of its most notorious past decisions. Just [last] summer, in the travel ban case, the Court repudiated Korematsu v. United States, the notorious 1944 decision that upheld the World War II-era racially-based internment of over 100,000 Japanese-Americans. Hardly anyone objected that it was somehow inappropriate for the justices to junk a 74-year-old precedent. Indeed, the main objections voiced (including by me) were that the Court implicitly retained much of the overdeferential approach to executive power it had used in Korematsu, thereby making a terrible mistake in the travel ban case itself.

Few people, particularly on the left, pine for the return of Bowers v. Hardwick, the 1986 case in which a narrow majority upheld the constitutionality of anti-sodomy laws. The Court eventually overruled Bowers in Lawrence v. Texas (2003), which has since become something of an iconic decision.

Highly controversial Supreme Court precedents like Bowers, Korematsu, and—yes—Roe [v. Wade], are never truly "settled" unless and until a broad consensus develops supporting them. In some cases, a precedent might become settled despite continuing widespread doubts about its correctness, if getting rid of it would inflict massive costs by upsetting expectations or generate an overwhelming political backlash. But even that won't necessarily prevent reversal if those who seek to overrule the decision believe that its perpetuation inflicts even greater costs….

Today, pretty much every…. legal commentator can name Supreme Court decisions they would like to see overruled. High on my list are cases as Kelo v. City of New London (and also Berman v. Parker, the earlier precedent on which it is based), Gonzales v. Raich, and—most recently—the travel ban case. I would be happy to see all of these eliminated at the first available opportunity. There are other precedents I would like to see cut back on more gradually….

If you follow constitutional law at all closely, you probably have a list of your own, that may well differ from mine….

The justices' highest legal obligation is not to the Court's past precedents, but the Constitution. If they are convinced that the latter conflicts with the former, they should overrule, if at all possible. There is a good case for adhering to precedent in situations where the court is uncertain whether it is correct or not. In such situations, it might be reasonable to defer to the seeming accumulated wisdom of earlier judges, especially if there was a broad cross-ideological consensus among them. As noted above, I think it is also justifiable to maintain wrong precedent in some instances where massive reliance interests would be upset otherwise.

But none of these considerations justifies maintaining precedents that the Court believes are badly wrong, and causing more harm than good in the real world. In such scenarios, the Court has a special obligation to help undo the evil that it had a major role in creating.

Ironically, living constitutionalists (the school of thought to which most liberal judges adhere) probably have more reason to oppose strong rules of stare decisis than originalists do. One of the tenets of most versions of living constitutionalism is that we need to update constitutional doctrines to take account of new knowledge acquired over time. If so, today's judges are more likely to get issues right than those of earlier eras (other things equal); not because current judges are necessarily smarter or more virtuous than their predecessors,  but because they have the benefit of greater knowledge acquired through a longer period of historical experience.

Originalism's connection to precedent is more ambivalent, and originalists in fact disagree among themselves about how much deference to give it. Judges from some earlier eras might sometimes have greater insight into original meaning than today's jurists do, at least in the case of those who personally lived through the period when the relevant constitutional provisions were drafted and ratified. On the other hand, later judges often have access to superior methods for determining original meaning, as there have been numerous methodological improvements in originalist legal theory in recent years. Moreover, the potentially superior insight of earlier judges is only relevant—from an originalist point of view—when those judges' decisions actually tried to apply originalism. In many cases, their decisions were based on other methodologies.

Furthermore, while originalists are committed to a fixed textual meaning, they also recognize that doctrine can change over time when a fixed meaning is applied to new facts, or to a better understanding of old ones. That too can justify overturning precedent.

Overall, I think those originalists who give constitutional precedent only modest weight have the better of the debate, in my view. And living constitutionalists have even more reason to be skeptical of strong forms of stare decisis.

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  1. Slaughterhouse! Go Slaughterhouse, go, just go!

  2. If stare decisis was a legitimate policy, we wouldn’t need a USSC, and Dred Scott will still be the law of the land.

    A decision by 9 well-bred morons is no more valid than any other…

    1. Bad example; we had some post-Scott amendments on that front.

      Also a strawman – Stare isn’t an absolute calcification of the law, it’s a thumb on the scales towards consistency.
      It has something to do with the humility to not think you’ve got it right for sure this time and the past was all idiots.

      1. Was Kennedy acting with “humility” when he overruled centuries of U.S. precedence (not to mention millennia of Western tradition) to hold that “human dignity” necessarily includes the right to sodomize another man?

        1. You mean like the Greeks and Romans did?

          Or are you really so interested in the welfare of other people that you have time to mind their business instead of your own?

          1. Maybe he thinks there really is such a right, and it puckers his anus to think about it.

            1. Maybe that’s it: random dudes come up to him, tell him that it’s their right to sodomize him, and he dutifully obliges, willfully forgetting how rights work.

        2. I’m very confused on what that tradition exactly is. Is the tradition “not having anal sex”? That’s not a tradition, since traditions are things you actually do.

          If the tradition is “punishing people who have anal sex” then maybe you have a case, but it’s still a stretch to call it a “tradition” since a tradition has ties to identity and very few criminal punishments do. It’s also not “millennia” old. It only started as Rome fell apart and converted, and even then only in Roman areas (you might like to know that Judaism wasn’t Western and early Christianity was still centered in Palestine and Egypt). Throughout early medieval Europe it was just considered a sin like any other, only being singled out in the 13th century (that’s less than one millennium). By the Renaissance the rich parts of Italy were enjoying sodomy again.

          If the tradition is “recognizing human rights and freedoms” then it seems to be in line there, but it’s still not even one millennium old.

          1. There’s a big gap between “punishing people for homosexual anal sex” and celebrating it as “normal” and “healthy.”

            1. There’s also a big gap between morbid fascination with the sex you imagine other people are having, and BEING “normal” and “healthy”.

  3. The Constitution expressesly reflects the framers’ creation of a common law system. That means precedent has the force of law.

    Obviously different judges have somewhat different thresholds for overruling precedent, and some precedents really do have to be overturned, but the vast majority of fervor for overruling precedents is from people whose egos far exceed their intellect. Following precedent shows due respect for the fact that some very intelligent judges- several of them, with the collective wisdom of crowds- reached a conclusion. It also respects all the lawyers and lower court judges and members of the general public who relied on what they thought the law to be.

    But most importantly, it reflects humility. People who think law is simple and their simple theory renders all the answers are, in fact, ignorant. Being humble, understanding that when smart people disagree with you, you might be wrong, is a crucial personality trait in judging.

    Stare decisis is very important.

    1. Stare decisis has always struck me as reflective of judicial arrogance, not humility. Good precedent is valuable because it is logical, based in law, and has stood the test of time, not because “it is written”…

      1. It is written is just an aphorism.

        The real reasons for stare decisis are the ones I listed.

        1. But many precedents were authored by judges whose egos far exceeded their intellect. Being dead doesn’t make one smart…

          1. Neither does being alive, though.

    2. The Constitution expressesly reflects the framers’ creation of a common law system.

      Not saying I disagree, but I am curious about where in the Constitution that expressly stated intent is to be found.

      1. Seventh amendment:

        “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.”

        It was clearly intended to have at least some degree of common civil law. Criminal law is rather more dubious.

    3. ” Following precedent shows due respect for the fact that some very intelligent judges- several of them, with the collective wisdom of crowds- reached a conclusion.”

      The court should overrule “Bong Hits” at its earliest opportunity.

    4. “The Constitution expressesly reflects the framers’ creation of a common law system. That means precedent has the force of law.”

      I’d substitute the word “retention” rather than “creation”.

      “Obviously different judges have somewhat different thresholds for overruling precedent, and some precedents really do have to be overturned, but the vast majority of fervor for overruling precedents is from people whose egos far exceed their intellect.”

      The same judge very likely has somewhat different thresholds for overruling precedent, depending on which precedent is being considered.

  4. Has no one actually read Korematsu v. US? Ilya is not the only prominent legal writer who has stated that the US Supreme Court upheld the legality of Japanese interment in Korematsu, even though the Court specifically declined to rule on that question. In an era of ubiquitous internet yielding virtually cost-free access to all Supreme Court decisions instantly at the touch of a few buttons, there is no excuse for not actually reading the text of the cases one cites.

  5. Perhaps the most general argument in favor of a view toward overturning precedent is simply that if that were not possible, then the nation could have no public life at all. Of course that applies alike to originalist understandings of the Constitution.

    A too-rigid adherence to originalism would constrict the scope of politics beyond even the founders’ useful intent and respect. They did not empower political branches as key departments of government because they disrespected or disparaged politics, as so many do now. The founders understood politics as the indispensable tool which nations must use freely to achieve self-government.

    And of course the same reasoning can be applied alike to the Supreme Court itself. If politically important adjustments to the nation’s fundamental laws are required, and the Supreme Court stands in the way, then modification of the Court itself becomes justified on the same basis and reasoning the Court uses, when it finds it necessary to overturn precedent.

  6. Stare decisis is like Libertarianism and fruit; it’s good until it isn’t.

  7. “Ironically, living constitutionalists (the school of thought to which most liberal judges adhere) probably have more reason to oppose strong rules of stare decisis than originalists do.”

    Don’t living constitutionalists mostly advocate stare decisis for originalists, not themselves? Usually when they mention it, it’s in the context of claiming originalists would be violating it if they overturned living constitutionalist decisions.

    1. “Don’t living constitutionalists mostly advocate stare decisis for originalists, not themselves?”

      Pretty much everyone advocates stare decisis when the outcome they prefer is law and overturning when the other side had the numbers last time the subject was decided. It’s the liberals’ turn to sweat because Justice Garland’s opinions don’t count.

  8. Seems to me the proper way to change the Constitution’s meaning is through Article 5; otherwise, on any given day, it means whatever five people want it to mean . . . as has been pretty much the practice since Roosevelt threatened to pack the court.

  9. ” Judges from some earlier eras might sometimes have greater insight into original meaning than today’s jurists do, at least in the case of those who personally lived through the period when the relevant constitutional provisions were drafted and ratified. On the other hand, later judges often have access to superior methods for determining original meaning, as there have been numerous methodological improvements in originalist legal theory in recent years.”

    It’s “amusing” that the author thinks that for every provision of the constitution there is a specific, precisely defined “original meaning” that can be ascertained with the exactitude of the Pythagorean theorem–in particular, that today, “we” can use our “superior methods for determining original meaning” that allow us to determine said original meaning more accurately than “those who personally lived through the period when the relevant constitutional provisions were drafted and ratified.”

    This recalls Justice Thomas’ language in the recent case “FTB v Hall” in which he “explained” that the Court had “blundered” in the famous early case “Georgia v. Chisholm”, a 4-1 blunder by a Court composed exclusively of “Founders”, including Chief Justice John Jay, who voted with the majority. Does Clarence Thomas really think he understands the original Constitution better than John Jay did? Seriously? That’s “original” thinking, but it’s hardly accurate. I mean, if we’re going to believe that words have meaning.

    1. Seeing as how the Founders didn’t all agree on what exactly the Constitution met, I don’t know why we should automatically accept that any one of them knew the “true meaning” of the Constitution.

      The Constitution of Moldova was made law in 1994 and the entire Constitutional Court is resigning right now because they didn’t abide by the constitution, even though they are among “those who personally lived through the period when the relevant constitutional provisions were drafted and ratified.”

  10. The single biggest argument for stare decisis is because it limits politization of the Court. If something is settled once an opinion issues, there’s no reason to try to stuff the court so you can get it overruled. You lose at the Supreme Court, and your next step is to amendment to overrule them, rather than hoping for mortality to strike down one of the justices who didn’t vote your way.

    1. “The single biggest argument for stare decisis is because it limits politization of the Court.”

      Assumes facts not in evidence: that there was ever a time when the court was not political.

      The effect of stare decisis is not so much limiting politicization of the court now, but rather to lock in past politicization of the court.

      1. “Assumes facts not in evidence: that there was ever a time when the court was not political.”

        1789.

  11. “If something is settled once an opinion issues” is often the result of a stuffed court. Turn about is fair play in the absence of utilization of Article 5.

    1. “Turn about is fair play in the absence of utilization of Article 5.”

      This kind of thinking is the problem.

      1. “Fair play” is a problem? If so then the proper procedure is through Article 5.

        1. Telepathically determining bad faith on the other side to rationalize your own hypocrisy is not fair play, WJack.

          1. He’s right that the proper procedure is amendment. You can tell because that’s what I said earlier today.

  12. The classical precept was that the laws (“legibus”), not the examples governed. Around the time of the Enlightenment, this was changed to that the reasons (“rationibus”), not the example governed.

    In the Elizabethan courts, the Year Books, which were largely guides to the arts of pleading, were first supplemented by printed books of picaresque precedent that taught principles by vivid examples. But that’s not necessarily how law works. At first, advocates were only free to suggest that the “common learning” or the prior judgments resolved the question, and specific citations were left for the judges.

    We’ve now lost the notion that there is some “common learning” that stands a bit outside precedent, but there’s still room within the modern view of precedent to accommodate contradictory examples.
    Certiorari jurisdiction is inherently disrespectful of precedent, and gives the lie to the illusion of legal positivism.

    X sues Y, because he was hit on the head by a barrel of beer that rolled out of Y’s warehouse, though it’s unclear why. The courts hold for X. The law isn’t that falling beer barrels create liability (the example), but that the factual basis of some situaitons can suffice to establish liability (the reason). When A sues B after being hit on the head by a barrel of cider from a well-run warehouse, and it emerges that he had been camped out underneath for months waiting for that to happen, the situation itself doesn’t speak.

  13. Whenever writers wax eloquent about stare decisis, i am reminded of a quote from Monty Python’s Life of Brian:
    “Because it is written, that’s why!’

  14. Speaking of overturning precedent, will the Court get around to the unanimous-jury case this term?

  15. Look, if the precedent reaches a result I agree with, then it should be preserved – who would dare try and improve on perfection?

    If a precedent reaches a result I disagree with, then it’s time to rewatch Eyes on the Prize about overruling Plessy v. Ferguson.

  16. The worst part about legal realists is how driven they are to barge into a thread and lay their ‘in actuality, nothing matters’ turd over and over again.

    Say what you will about originalism, at least it’s an ethos. This lot are like evangelical solopsists.

    1. solipsists. I spelled it right in my universe, which is all that matters.

      1. Sarcasto,
        Don’t believe the voices, you are not Humpty Dumpty, despite all of the evidence to the contrary.

    2. “Say what you will about originalism, at least it’s an ethos.”

      Or would be, if anyone practiced it consistently. But when originalism produces the wrong result…

        1. Indeed. Did you feel the rush of air?

  17. Two wrongs don’t make a right, but three lefts, do.

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