The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In today's notable voting rights decision in Allen v. Milligan, the Supreme Court reasserted its longstanding rule that there is a strong presumption against overruling statutory precedents. The Court is more willing to reverse constitutional decisions. But potentially wrongheaded statutory precedent is largely left to Congress, especially if that precedent has been in place for a long time. Here's the relevant excerpt from Chief Justice John Roberts' majority opinion:
Alabama first argues that §2 [of the Voting Rights Act] does not apply to single-member redistricting…..
This understanding of §2 cannot be reconciled with our precedent. As recounted above, we have applied §2 to States' districting maps in an unbroken line of decisions stretching four decades…. In doing so, we have unanimously held that §2 and Gingles "[c]ertainly … apply" to claims challenging single-member districts. Growe, 507 U. S., at 40. And we have even invalidated portions of a State's single-district map under §2. See LULAC, 548 U. S., at 427–429. Alabama's approach would require "abandoning" this precedent, "overruling the interpretation of §2" as set out in nearly a dozen of our cases. Holder, 512 U. S., at 944 (opinion of THOMAS, J.). We decline to take that step. Congress is undoubtedly aware of our construing §2 to apply to districting challenges. It can change that if it likes. But until and unless it does, statutory stare decisis counsels our staying the course. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 456 (2015).
In a crucial concurring opinion (he was the swing voter in this 5-4 decision) Justice Brett Kavanaugh reaffirms strong statutory stare decisis even more forcefully:
I agree with the Court that Alabama's redistricting plan violates §2 of the Voting Rights Act as interpreted in Thornburg v. Gingles, 478 U. S. 30 (1986). I write separately to emphasize four points.
First, the upshot of Alabama's argument is that the Court should overrule Gingles. But the stare decisis standard for this Court to overrule a statutory precedent, as distinct from a constitutional precedent, is comparatively strict. Unlike with constitutional precedents, Congress and the President may enact new legislation to alter statutory precedents such as Gingles. In the past 37 years, however, Congress and the President have not disturbed Gingles, even as they have made other changes to the Voting Rights Act. Although statutory stare decisis is not absolute, "the Court has ordinarily left the updating or correction of erroneous statutory precedents to the legislative process." Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (Kavanaugh, J., concurring in part) (slip op., at 4); see also, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 456 (2015); Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989); Flood v. Kuhn, 407 U. S. 258, 283–284 (1972); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting).
Both Roberts and Kavanaugh imply that the rule of statutory stare decisis is particularly strong when the precedent is longstanding and Congress has had many opportunities to change it, but didn't choose to do so.
Kavanaugh's favorable citation to Flood v. Kuhn (1972) is also notable. This is the famous case where the Court refused to overturn precedent exempting professional baseball leagues from the Sherman Anti-Trust Act, even though all of the justices agreed that the precedent in question was badly wrong, and that it made little sense to exempt Major League Baseball from antitrust rules, even as other professional sports leagues (such as the NFL) are covered by them. Flood is often considered a paradigmatic example of maintaining statutory precedent even when judges think the precedents in question are truly awful.
Roberts' and Kavanaugh's apparent commitment to strong statutory stare decisis has implications for other cases where litigants seek to overturn statutory precedents, especially longstanding ones. Notable examples include the Harvard and UNC racial preferences cases currently before the Court, where plaintiffs argue the Supreme Court should reverse longstanding precedent permitting "diversity"-promoting affirmative action policies under Title VI of the Civil Rights Act of 1964. I think it's still highly likely that the Court will rule against Harvard and UNC. But it is now more likely to do so by reaching the constitutional issue, rather than focusing on Title VI. As a private institution, Harvard is only bound by Title VI, not the Constitution. But a ruling on the latter will also affect the former, as the relevant precedent says that Title VI and constitutional standards are the same.
In my view, the Title VI precedents are so egregious that they might warrant overruling even under a strong presumption of stare decisis. But a majority of the Court might well believe otherwise.
Another challenge to longstanding statutory precedent currently before the Court is Groff v. DeJoy, a case where the plaintiff seeks to overrule a 1977 decision narrowly interpreting the scope of accommodations for employees' religious commitments that employers are required to grant under Title VII of the Civil Rights Act of 1964. Today's ruling makes it less likely that the Supreme Court majority will be willing to take that step.
The strong presumption of statutory stare decisis has many critics. I myself am not convinced that it's correct (though I do agree it should be stronger than in constitutional cases). The same goes for the related idea that congressional "acquiescence" to statutory precedents requires even greater judicial deference. But Roberts, Kavanaugh, and the three liberal justices seem committed to these ideas. Unless they shift, litigants seeking to overturn longstanding statutory precedents are likely to continue to have a tough time before the Supreme Court.