Overruled: Is precedent in danger at the Supreme Court?

In the early years of Oklahoma’s statehood, tracts of public land were leased to energy companies on the condition that a portion of the revenue be put into a state fund for public schools. When the federal government tried to levy income tax on that revenue the case eventually went to the United States Supreme Court. It ruled the federal taxation unconstitutional, citing a precedent from a decade earlier.

In a dissent to that 1932 opinion, Justice Louis Brandeis articulated what still forms the core of how the high court approaches one of its weightiest powers: overturning precedent.

Stare decisis – a doctrine, dating back to English Common Law, that courts should follow the precedent set by past cases – is not a “universal, inexorable command,” he wrote. But it “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”

Since then, Supreme Court justices have debated when it is not “the wise policy.” As the current court nears the end of its first term with a reliably conservative five-justice majority, that debate 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.

Overturning precedent is not always a bad thing, legal experts note. Indeed, on constitutional interpretations if the Supreme Court can’t overturn a bad precedent the only other option is a constitutional amendment. But the high court must balance that with an obligation to not sow too much uncertainty over what the law of the land is. At stake is not just the future of precedents like Roe, court watchers say, but public confidence in the court itself.

“There’s no supermajority required when the court is considering overturning precedent. So instead what we hope the court will do, consistent with stare decisis principles, is give serious consideration to prior opinions,” says Steven Schwinn, a professor at the John Marshall School of Law in Chicago. There is a higher bar, he adds, “and the dispute between the justices is, where is that bar?”

Four factors

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.”

“Stare decisis, of course, is ‘not an inexorable command.’ But it is not enough that five Justices believe a precedent wrong,” she added, quoting Justice Breyer’s dissent. “‘Today’s decision can only cause one to wonder which cases the Court will overrule next.’ Well, that didn’t take long. Now one may wonder yet again.”

‘Serious cost to keeping an error on the books’

While the high court has overruled two long-standing precedents this term, they were undoubtedly less significant than precedents like Roe. (The court may choose to overrule another significant precedent this term, Auer deference, that restricts a court’s ability to overrule agency regulations.)

Under Chief Justice John Roberts, there have been four other major overrulings. In 2008, the court broadened Second Amendment protections for firearm possession, overturning a 1939 ruling. Two years later, it overruled a 20-year-old precedent in deciding that a ban on corporate donations to political campaigns was unconstitutional. Five years later, the court made same-sex marriage constitutional, overturning a 1971 ruling. The court overruled a 40-year-old precedent last year, deciding that public sector workers don’t have to pay union dues even if they’re covered by a union contract. All three decisions were 5-4. 

The slim majorities contrast with the court led by Chief Justice Earl Warren, which overturned a number of precedents during the civil rights era, starting with outlawing segregation in the unanimous Brown v. Board of Education decision in 1954. 

Thirteen years later the court was unanimous again in overturning precedent and legalizing interracial marriage in Loving v. Virginia. In 6-3 decisions, the Warren Court also overturned precedents to require that states provide a defense lawyer to criminal defendants who can’t afford one and to ban poll taxes.

Many of these 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.

Whether that approach continues now there are five reliable conservatives on the court is another question. The opinion overturning Hall “shows there’s an erosion” occurring, says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles.

“They opened the door to a broader rationale of reasons to” overturn precedent, she adds. “It remains to be seen what it will mean.” 

‘How much of a change?’

How the court approaches precedent in the short term could depend on Chief Justice Roberts, who became the de-facto ideological center of the bench this term. Throughout his tenure he has favored a gradual overturning of precedent, hearing multiple cases challenging a past decision before finally overturning it. (Both the decision scrapping Hall and the decision on public sector union dues were preceded by similar opinions that questioned the precedent without overturning it.)

In oral argument on the case challenging Auer deference this term, the chief justice suggested that precedent could be weakened over time, thus making overruling it less consequential.

“To get back to stare decisis question, I think the issue depends at least in part about how much of a change you’re making,” he said. “I just wonder exactly how much of a change at the end of the day you’re talking about.”

Justice Clarence Thomas, the most ideologically conservative member of the court, would like to eliminate some of the fuzziness.

Following incorrect precedents has been especially “disastrous” in substantive due process cases, abortion cases in particular, he wrote in a solo opinion last week. The court should instead value the Constitution – specifically, his “originalist” philosophy that it should be interpreted as the Framers intended when they drafted it – over adhering to past Supreme Court decisions, he wrote. (Abortion was legal in every state until roughly 100 years after the country’s founding.)

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” he added.

The fact that no other justice was willing to join his opinion is notable, says Josh Blackman, associate professor at the South Texas College of Law.

“On stare decisis I think he’ll be on his own for a while,” he says. “The other justices aren’t [always] willing to say what they think. Justice Thomas has no filter, as they say.”

Correction: Ilya Somin’s quote has been updated to reflect that justices would only be overruling decisions they consider badly wrong.