When the Supreme Court brought down the curtain on its 2018 term last June, an important, heated debate divided the justices over when to overrule constitutional precedent and when to follow it. As the justices return to the bench next week, the debate is certain to continue.

Most justices agree that constitutional precedent is entitled to some respect. It is an essential part of the U.S. legal system, necessary to create stability in the law and to enhance the credibility of the court.

Yet justices also acknowledge that precedent is not always binding, and cases casting doubt on prior decisions have often divided the justices on ideological grounds, producing 5-4 rulings. During the last two terms, the court’s conservative majority has overruled a number of important constitutional precedents, and each instance has prompted sharp criticism from the liberal dissenters.

The struggle is over the role of stare decisis, the Latin term that embodies respect for precedent. Literally translated, it means “to stand by things decided.” For discussion of precedent, it refers to standing by the rules of prior cases.

The debate focuses more on constitutional decisions than on those interpreting statutes. If there is dissatisfaction with the court’s interpretation of a federal law, the logic goes, Congress can amend the law to correct the problem. With constitutional interpretation, however, justices feel freer to change course if they believe correction is needed, because the only alternative is amending the Constitution.

At the heart of the debate is the belief by some of the justices in the majority that they are free to overturn past decisions they believe were wrongly decided, and the view by the dissenters that there needs to be greater justification for abandoning precedent than just a new majority changing its mind.

It is not a new debate. Justice John Paul Stevens explained his standpoint clearly in a dissent in Citizens United v. Federal Election Commission in 2010. “I am not an absolutist when it comes to stare decisis … No one is,” Stevens wrote. “But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five justices for overturning settled doctrine.”

This battle mirrors some earlier Supreme Court fights. Critics of the court under Chief Justice Earl Warren from 1953 to 1969 said the justices were too willing to abandon precedent in an effort to expand civil rights and civil liberties. The justices in the majority in that era believed it was their duty to correct what they saw as mistaken decisions of the past or to overrule decisions that no longer reflected the constitutional values of a changing society.

The majority today also asserts that it is cleaning up the mistakes made by courts in the past. The most recent example last June was Knick v. Township of Scott, Pennsylvania, in which the court overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, a decision from 1985 interpreting the takings clause of the Fifth Amendment.

The Fifth Amendment guarantees that government must pay “just compensation” when it seizes private property for public use. Williamson held that a property owner whose land was taken by a local government must first seek compensation in state court before filing a takings clause claim to enforce the Fifth Amendment in federal court. In 2005, however, the Supreme Court ruled in San Remo Hotel, L. P. v. City and County of San Francisco that the outcome of such a state-court claim could preclude a lawsuit in federal court. In Knick, Chief Justice John Roberts wrote for the majority that the requirement of going to state court first imposes an “unjustifiable burden” on constitutional rights and that Williamson had to be overruled so that takings clause claimants could proceed directly to federal court to seek compensation.

Justice Elena Kagan wrote for the dissent that the majority framed all its arguments expressly to justify overruling Williamson. “But the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance,” Kagan wrote. “For it is hard to overstate the value, in a country like ours, of stability in the law.”

Knick is just one of a handful of recent overrulings that have divided the court, but the struggle may also be a proxy for what lies ahead. Both sides in the debate over abortion rights are laser-focused on whether the justices will overrule the decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) that protect a woman’s right to choose to terminate a pregnancy. The court’s dissenters might have had the same concern in mind last May when Justice Stephen Breyer concluded his dissenting opinion in Franchise Tax Board of California v. Hyatt, writing, “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

In Hyatt, Breyer was dissenting from a 5-4 decision that overruled the 1979 case Nevada v. Hall. In an opinion by Justice Clarence Thomas, the majority ruled that a state may not be sued without its consent by a private party in the courts of another state. In overruling Hall, Thomas wrote that it was “irreconcilable with our constitutional structure and with the historical evidence” that the authors of the Constitution envisioned that states would not retain sovereign immunity from private lawsuits.

In his dissent, Breyer warned that it is “dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question.”

Deepening the debate is that the justices do not appear to agree about what standards should govern the decision whether to overrule a prior case. In Casey, the 1992 abortion ruling, three justices who are all now retired – Sandra Day O’Connor, Anthony Kennedy and David Souter – established in a joint opinion a four-part test. The section, widely believed to have been written by Souter, said the court should consider: whether a rule had become unworkable, whether reliance on the rule would create hardships, whether changes in legal principles have left the rule a relic of outdated doctrine, and whether facts have changed so much that the rule has little practical application.

That formulation has not been widely accepted or frequently cited by the court’s current majority. In June 2018, the court overruled Abood v. Detroit Board of Education (1977) and held that requiring public employees to pay a fee to unions over their objection to cover the costs of collective bargaining violated the employees’ free speech rights. Writing for a 5-4 majority in Janus v. American Federation of State, County and Municipal Employees, Justice Samuel Alito started the stare decisis discussion with what he said were five questions to be considered, the first one of which did not appear on the Casey list. Alito wrote, “Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.”

The first question posed in Alito’s test, the quality of the prior court’s reasoning, essentially gives the majority a free hand to overrule. This factor creates an interesting dilemma. On one hand, many justices would find it problematic to be bound by a precedent they think was wrong and unsupported by sound legal reasoning. On the other hand, if justices can overrule a precedent because they think it was poorly reasoned, that might allow them to abandon a prior decision simply because they disagree with it, the very criticism that the dissenters leveled against the majority in recent cases.

In Janus, Kagan wrote for the dissent, “The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.”

The majority does not accept this criticism, however. In Janus, Alito marched through all five factors and found that Abood failed on all counts.

So with the two sides largely talking past each other, the debate is certain to continue, unabated and unresolved, in the new court term.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Supreme Court precedent, SCOTUSblog (Oct. 2, 2019, 9:54 AM), https://www.scotusblog.com/2019/10/scotus-for-law-students-supreme-court-precedent/