Stare Decisis and Judge-Made Law

What today's decision in South Dakota v. Wayfair might tell us about the future of qualified immunity

One of this morning's more consequential Supreme Court decisions was South Dakota v. Wayfair, where the Supreme Court overruled its 51-year-old and 26-year-old decisions in Bellas Hess and Quill to hold that states may require out-of-state retailers to collect and remit sales tax. The decision was 5-4 (and as Jonathan notes, with an unusual lineup), but interestingly all nine justices agreed that the original decision in Bellas Hess was wrongly decided. What they disagreed about was stare decisis—should the prior decision stand?—especially given the context of the Court's jurisprudence under the so-called "dormant" Commerce Clause.

Normally the Court adheres more strongly to precedent in cases of statutory interpretation than in constitutional cases because Congress can fix the Court's mistakes of statutory interpretation but can't fix the Court's constitutional mistakes. The dormant Commerce Clause—under which the courts strike down state laws that improperly burden interstate commerce, unless Congress authorizes those laws—is somewhere in between. It purports to be an interpretation of the Constitution, but it is still subject to revision by Congress. So what form of stare decisis should apply?

From the majority opinion by Justice Kennedy:

"Although we approach the reconsideration of our decisions with the utmost caution, stare decisis is not an inexorable command." Pearson v. Callahan, 555 U. S. 223, 233 (2009) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); alterations and internal quotation marks omitted). Here, stare decisis can no longer support the Court's prohibition of a valid exercise of the States' sovereign power.

If it becomes apparent that the Court's Commerce Clause decisions prohibit the States from exercising their lawful sovereign powers in our federal system, the Court should be vigilant in correcting the error. While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court's proper role to ask Congress to address a false constitutional premise of this Court's own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response. It is currently the Court, and not Congress, that is limiting the lawful prerogatives of the States.

And from Chief Justice Roberts's dissent:

I agree that Bellas Hess was wrongly decided, for many of the reasons given by the Court. The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." Ante, at 18. But that is the very reason I oppose discarding the physical-presence rule. Ecommerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress. The Court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago. …

This Court "does not overturn its precedents lightly." Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 15). Departing from the doctrine of stare decisis is an "exceptional action" demanding "special justification." Arizona v. Rumsey, 467 U. S. 203, 212 (1984). The bar is even higher in fields in which Congress "exercises primary authority" and can, if it wishes, override this Court's decisions with contrary legislation. Bay Mills, 572 U. S., at ___ (slip op., at 16) (tribal sovereign immunity); see, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8) (statutory interpretation); Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. ___, ___ (2014) (slip op., at 12) (judicially created doctrine implementing a judicially created cause of action). In such cases, we have said that "the burden borne by the party advocating the abandonment of an established precedent" is "greater" than usual. Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989). That is so "even where the error is a matter of serious concern, provided correction can be had by legislation." Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)).

We have applied this heightened form of stare decisis in the dormant Commerce Clause context. Under our dormant Commerce Clause precedents, when Congress has not yet legislated on a matter of interstate commerce, it is the province of "the courts to formulate the rules." Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 770 (1945). But because Congress "has plenary power to regulate commerce among the States," Quill, 504 U. S., at 305, it may at any time replace such judicial rules with legislation of its own, see Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 424–425 (1946).

I found this debate interesting in its own right, but also because I wondered what it implies about other judge-made doctrines that might hit the Court's docket in the future. For instance, some scholars (including last week's guest Joanna Schwartz, and me) have critcized the Court's doctrine of qualified immunity from suits for constitutional violations, a doctrine created by the Court in the second half of the twentieth century. Others, such as Aaron Nielson and Chris Walker have defended that doctrine on stare decisis grounds, and argued that the Court should leave any correction of the doctrine to Congress.

A few recent cert. petitions have asked the Court to reconsider the doctrine, and the Court has called for a response in at least two of them, Spencer v. Abbott and Allah v. Milling. It struck me that this same debate might play out again in that context. Perhaps members of the Wayfair majority will be more likely to be willing to reconsider qualified immunity if they agree that it is a "false … premise of th[e] Court's own creation" and one in an area where "[c]ourts have acted as the front line of review." (Indeed, one member of the majority, Justice Thomas, has already expressed his interest in reconsidering the doctrine.) By contrast, perhaps members of the Wayfair dissent will be more likely to insist that the Court should not be the one "to expiate a mistake it made over 50 years ago." (Though one member of the dissent, Justice Sotomayor, signalled at least some concerns about the doctrine in a recent dissent.)

And now that I think about it, some of the same analogies could be made in the debate about whether to limit Chevron …