What in the world is “zombie precedent”?

It may be Christmas and Hanukkah season, but I’ve got a Supreme Court ghost story to tell. It comes from Justice Antonin Scalia, who warned of a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad.”

Scalia wasn’t describing the ghosts of angry plaintiffs wandering the halls of One First Street. He was writing, in 1993’s Lamb’s Chapel v. Center Moriches Union Free School District, about what at that point was a 22-year-old Supreme Court decision that laid out a three-part test for courts to use to determine whether a statute violated the First Amendment’s establishment clause. The so-called Lemon test, which came from 1971’s Lemon v. Kurtzman, was much-maligned as unwieldy to apply and thus often side-stepped. But it remained on the books – to Scalia’s chagrin.

“Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under,” Scalia wrote in an opinion concurring in the judgment, criticizing the fact that the majority opinion included a discussion of Lemon.

With apologies for mixing Halloween metaphors, the Lemon test was, in Scalia’s estimate, what is known as a “zombie precedent,” a past ruling that’s “not exactly alive, but not totally dead, either,” as David French recently put it. For years, Lemon would appear to be dead, but then it would unexpectedly spring to life to help justify a decision. Finally, in 2022, the court openly repudiated it.

Becoming a zombie precedent is one possible fate for Supreme Court decisions that lose support from the court over time. Another, of course, is being overturned. Still another is being abandoned without being formally overturned. A precedent’s final destination depends, in part, on whether the court has opportunities to revisit it.

Here’s a brief explanation of these three possibilities and a few examples of cases that met these fates.

Overturned precedents

Overturning is the best-known way in which the Supreme Court gets precedent off the books. It requires the court to confront a prior decision head on and determine that it should no longer have any controlling effect in future cases.

The most prominent recent example of overturning precedent comes from Dobbs v. Jackson Women’s Health Organization in 2022. In that case, five of the court’s justices voted to overturn the constitutional right to abortion as established in the 1973 case of Roe v. Wade. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” wrote Justice Samuel Alito in the majority opinion.

Overturning precedent is the most decisive way to leave behind a precedent, but it’s also controversial. In large part because of the Dobbs decision, the Roberts court has faced criticism for “aggressively overturn[ing]” decades-old decisions that many court watchers felt should be protected by the doctrine of stare decisis, which literally means “to stand by things decided” even when these things are believed to be wrong, as Amy Howe noted in a recent SCOTUSblog analysis. (She added, however, that several legal experts have contended that the Roberts court does not appear to overturn precedent at a higher rate than earlier courts and may even overturn precedent less often.)

As Amy explained, the Roberts court appears to consider several factors when considering whether to disregard stare decisis and overturn a past ruling: the extent of the past error; the quality of the reasoning employed; the “workability” of the standards laid out in that prior case; how the past decision affected other areas of the law; how the country has changed since the decision was handed down; and to what extent people and entities have relied on the ruling. To put it more simply: If a majority of justices agree that a precedent was significantly wrong and unworkable and, in their view, they can overturn it without throwing the country into chaos, the precedent will (presumably) be overturned.

Abandoned precedents

Eighty-one years ago, the Supreme Court issued one of its most infamous decisions, holding in Korematsu v. United States that the government had the authority to send certain U.S. citizens of Japanese descent to relocation camps during World War II. Specifically, the 6-3 ruling allowed for the conviction of Fred Toyosaburo Korematsu, who had refused to relocate.

In the majority opinion, Justice Hugo Black wrote “that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” However, he added, “[t]hat is not to say that all such restrictions are unconstitutional. … Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” The majority concluded that the challenged “exclusion order” was a lawful response to “real military dangers.”

The justices in dissent felt that the majority had misjudged “a clear violation of Constitutional rights,” as Justice Owen Roberts put it. Justice Robert Jackson wrote that relocation orders unlawfully made guilt “inheritable” by having it hinge on an individual’s race.

The Supreme Court has never formally overturned the Korematsu decision, but in 2018, in a case in which the court allowed President Donald Trump’s travel ban restricting travel to the U.S. from eight countries – most of which had Muslim majorities – to remain in place, it clearly rejected it. After criticizing the dissent for invoking Korematsu in its discussion of what was wrong with the majority’s reasoning, Chief Justice John Roberts said one benefit of the dissent’s reference to that decision was that it “afford[ed] this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”

Korematsu, then, is no longer a live precedent, although it’s not accurate to say it’s been overturned by the court – likely because the court hasn’t had an opportunity to directly address it. Instead, it’s been openly abandoned.

Zombie precedents

As noted above, a zombie precedent is a precedent that continues to be invoked from time to time even after it has been widely criticized by members of the court and/or side-stepped in related cases. As described above, Lemon is a classic example, because although it created a three-part test for courts to resolve establishment clause cases, the court itself has often declined to use this test in such cases, turning instead to discussions of history and tradition to resolve these disputes.

This three-part test was used to determine whether a statute created unlawful entanglement between the government and religion. First, the law had to be found to have a “secular purpose.” Second, it could not promote or restrict religious beliefs or practices. Finally, the statute could not foster excessive church-state entanglement.

According to its (very vocal) critics, the Lemon test was problematic from the beginning. For one thing, it was too subjective and led different courts to opposite results in similar cases (what, for example, was meant by a “secular purpose”?). For another, it appeared to overlook certain types of church-state entanglement of which the Founding Fathers had approved, such as a president including a mention of God in an official address, as Alito noted in a 2019 case.

Alito summarized these complaints – and the Supreme Court’s odd relationship with the test – in that same 2019 decision, in which the court held that a large cross could remain on public land and continue being maintained by government officials in Maryland. “If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it,” Alito wrote. “This pattern is a testament to the Lemon test’s shortcomings.”

As the name implies, a zombie precedent is hard to kill, although it is possible. Lower courts continued to use the Lemon test even after Alito and other justices implied – or openly claimed – that it had been abandoned by the Supreme Court, including in a recent case on whether a football coach at a public school could pray on the football field. But in a majority opinion in favor of the coach, Justice Neil Gorsuch appeared to strike the Lemon test with a final, deadly blow (although he claimed he was swiping at something that had already perished). Gorsuch wrote that establishment clause cases must instead “be interpreted by ‘reference to historical practices and understandings.’” Justice Sonia Sotomayor then put it plainly in a dissenting opinion joined by Justices Stephen Breyer and Elena Kagan: Lemon, after facing criticism for decades, had been overruled.