The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During oral arguments in Dobbs, the Solicitor General had to hold a difficult line: the Supreme Court should not overrule a case simply because it was wrong. Justice Alito highlighted this position with a devastating line of questions.
JUSTICE ALITO: Is it your argument that a case can never be overruled simply because it was egregiously wrong?
GENERAL PRELOGAR: I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn't done so in this case.
At this point, Justice Alito raised the obvious rejoinder:
JUSTICE ALITO: Really? So suppose Plessy versus Ferguson was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?
The answer should be, of course it would be sufficient. But the SG could not take that position. Doing so would undermine the federal government's insistence that wrongness is not sufficient to overrule a precedent.
GENERAL PRELOGAR: It certainly was egregiously wrong on the day that it was handed down, Plessy, but what the Court said in analyzing Plessy to Brown and Casey was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn't create a badge of inferiority, had been entirely mistaken.
In other words, the grounds for overruling Plessy only became clear in the five decades after the case. Huh? Plessy concluded that segregation didn't create badges of inferiority. But Jim Crow demonstrated that segregation did in fact create badges of inferiority. It took five decades, apparently, to demonstrate that separate was not equal. Much to my surprise, Justice Breyer also articulated this exact same perspective.
JUSTICE BREYER … Plessy was wrong when decided, but, just a minute, also remember Plessy said that separate but equal was a badge of inferiority. No, they said, it isn't. Well, all you have to do is open your eyes and look at the south, my friend, and you will see whether it was or it wasn't in 1954.
This position isn't completely irrational. Brown was premised on social science research that was published in the twentieth century.
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.
In that regard, the Warren Court couldn't reach its decision until the Doll Test was performed. Remember, Brown rejected any reliance on original meaning. Only through modern-day understandings of education could the Court make its ruling. And to be clear, Brown didn't actually overrule Plessy. The Court simply concluded that "in the field of public education, the doctrine of 'separate but equal' has no place."
Prelogar and Breyer did not make this argument. Instead, the Solicitor General had to tap-dance around Alito's questioning.
JUSTICE ALITO: So is it really . . . your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was wrongly decided? Would you answer my question? Had it come before the Court in 1897, should it have been overruled or not?
GENERAL PRELOGAR: I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the Court realized that and clarified that when it overruled in Brown.
I've read this sentence several times. I still don't understand it. Neither did Justice Alito.
JUSTICE ALITO: But your answer is --I don't --I still don't understand --I still don't have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled? Yes or no? Can you give me a yes or no answer on that?
Here, Justice Alito laid another trap. SG Prelogar should have hedged. But she didn't. She gave an absolute, unequivocal answer.
GENERAL PRELOGAR: This Court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance.
When I write, I try to avoid absolute words like "never" and "always." Even a single instance can prove these assertions wrong. And indeed, there is one such case in which the Supreme Court overruled a precedent, based entirely on a conclusion the decisions was wrong, without regard to any new facts or new legal arguments.
In Hepburn v. Griswold (1870), the Court held that Congress lacked the power to require people to accept paper currency as legal tender. When Hepburn was argued in November 1869, there were only eight Justices on the bench. After arguments the vote was 5-3. The majority, per Chief Justice Chase, concluded that the Legal Tender Act was unconstitutional. However, in January 1870, Justice Grier resigned due to his poor health before the decision was formally announced. This vacancy made the final vote 4- 3. After Hepburn was decided, President Grant appointed Justices Strong and Bradley. They were known to support paper money as legal tender, which Grant also favored. Following their confirmations there were now five Justices who thought that the Legal Tender Act was constitutional. Sure enough, the Court reversed itself a year later. Knox v. Lee (1871) held that the Legal Tender Act was constitutional. Hepburn was now overturned by a 5- 4 vote.
In Knox, Chief Justice Chase's dissent spoke to the Court's approach to stare decisis:
A majority of the court, five to four, in the opinion which has just been read, reverses the judgment rendered by the former majority of five to three, in pursuance of an opinion formed after repeated arguments, at successive terms, and careful consideration; and declares the legal tender clause to be constitutional; that is to say, that an act of Congress making promises to pay dollars legal tender as coined dollars in payment of pre-existing debts is a means appropriate and plainly adapted to the exercise of powers expressly granted by the Constitution, and not prohibited itself by the Constitution but consistent with its letter and spirit. And this reversal, unprecedented in the history of the court, has been produced by no change in the opinions of those who concurred in the former judgment.. . . We adhere to the opinion pronounced in Hepburn v. Griswold. Reflection has only wrought a firmer belief in the soundness of the constitutional doctrines maintained, and in the importance of them to the country.
To paraphrase Justice Stevens in Citizens United, the only relevant thing that changed between Hepburn and Knox was the composition of the Court. Knox v. Lee is precisely the case that Justice Alito asked about: the Supreme Court reversed itself in the span of one year, based entirely on the conclusion that the prior decision was wrong.
Randy and I discuss both of these cases in 100 Cases. I'm surprised they didn't come up in any of the Solicitor General's moots.
Update: A colleague writes in with a far more-recent reversal:
I think you could also point to a more recent pair of rulings: Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943).
Unlike the legal tender cases, this wasn't just a matter of replacements shifting who was in the majority. Only two members had changed (Hughes to Jackson, and McReynolds to Rutledge). But that alone would have only changed an 8-1 vote to 6-3, with the same outcome.
The key reason that 8-1 became 6-3 the other way was that three members (Black, Douglas, and Murphy) changed their minds. The opinion for the majority in the second case explains the four assumptions underlying the prior case that they now believe were mistaken, and the three who changed wrote a concurrence explaining why they were doing so. There was nothing meaningfully different in the facts or circumstances, as far as I can tell. They simply felt differently about the decision three years later.
Again, advocates should really hesitate before saying words like "always" and "never." It is so easy to slip up.