Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In the modern era, the Supreme Court has applied the doctrine of stare decisis by following the rules of its prior decisions unless there is a “special justification” —or, at least, “strong grounds” —to overrule precedent.1 This justification must amount to more than a disagreement with a prior decision’s reasoning.2 In adopting this approach, the Court has rejected a strict view of stare decisis that would require it to adhere to its prior decisions regardless of those decisions’ merits or the practical implications of retaining or discarding precedent.3 Instead, while the Court has stated that its precedents are entitled to respect and deference,4 the Court considers the principle of stare decisis to be a discretionary “principle of policy” to be weighed and balanced along with the Court’s views about a prior decision’s merits, along with several pragmatic considerations, when determining whether to retain precedent in interpreting the Constitution5 or deciding whether to hear a case.6 Notably, the Court may avoid having to decide whether to overrule precedent if it can distinguish the law or facts of a prior decision from the case before it, or limit the prior decision’s holding so it is inapplicable to the instant case.7

The Supreme Court has established special rules for applying stare decisis in constitutional cases. During the twentieth century,8 the Court adopted a weaker form of stare decisis when deciding cases that implicated a prior constitutional interpretation, rather than a previous interpretation of a federal statute.9 The Court has sought to justify this approach on the grounds that Congress may amend federal laws to address what it deems to be erroneous judicial statutory interpretations, whereas amending the Constitution to overturn a Supreme Court precedent is much more difficult.10 In fact, in the history of the United States, only five Supreme Court precedents have been overturned through constitutional amendment.11 Despite the Court’s assertion that it applies a weaker form of stare decisis in constitutional cases, the Court still requires a “special justification” or at least “strong grounds” for overruling constitutional precedents.12

Footnotes

1

See Janus v. Am. Fed. of State, Cnty., & Mun. Emps., No. 16-1466, slip op. at 34 (2018) ( “We will not overturn a past decision unless there are strong grounds for doing so.” ); Arizona v. Rumsey, 467 U.S. 203, 212 (1984) ( “Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.” ). For a list of Supreme Court decisions on constitutional law questions that the Court has overruled during its more than 225-year history, see Table of Supreme Court Decisions Overruled by Subsequent Decisions.

Legal scholars continue to debate questions surrounding the doctrine of stare decisis that are beyond the scope of this essay, such as whether the Constitution requires (or even allows) the Supreme Court to follow precedent, and whether Congress could abolish stare decisis in constitutional cases. See, e.g., Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 571 (2001); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1548 (2000).

2

Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455 (2015) ( “[A]n argument that [the Court] got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” ).

3

Cf. Super stare decisis, Black’s Law Dictionary 1537 (9th ed. 2009) (defining “super stare decisis” as “the theory that courts must follow earlier court decisions without considering whether those decisions were correct” ). A court following a prior decision because it was correctly decided is not adhering to stare decisis; it is merely reaffirming precedent. See Fallon, supra note 1, at 570 ( “If a court believes a prior decision to be correct, it can reaffirm that decision on the merits without reference to stare decisis.” ).

4

See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 362 (2010) ( “Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.” ).

5

Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 73, 134–35 (1991) [hereinafter Gerhardt, The Role of Precedent] (describing the Court’s review of its precedents as a “process in which the Justices individually try to balance their respective views on how the Constitution should be interpreted and certain social or institutional values such as the need for stability and consistency in constitutional law” ). Sometimes a Justice’s judicial philosophy may conflict with precedent, potentially requiring a Justice to choose between following his or her philosophy, or making a pragmatic exception to it in order to maintain stability in the law. For example, some proponents of textualism and original meaning as methods of constitutional interpretation object to the use of judicial precedent that conflicts with the Constitution’s text and its original meaning. In their view, this approach to precedent favors the Supreme Court’s views over the views of those who ratified the Constitution, thereby allowing mistaken constitutional interpretations to persist. See Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 769–70 (1988). Nevertheless, textualists and originalists may adhere to precedent for pragmatic reasons, such as when doing so would promote stability in the law. For example, Justice Antonin Scalia, a textualist and originalist, followed long-standing precedent allowing for the Supreme Court to incorporate rights specifically enumerated in the Bill of Rights against state governments, even though he harbored significant doubts that such incorporation comported with the Constitution’s original meaning. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (Scalia, J., concurring) ( “Despite my misgivings about substantive due process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights ‘because it is both long established and narrowly limited.’” (citing Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring)).

6

See Citizens United, 558 U.S. at 378 (Roberts, C.J., concurring) ( “Stare decisis is . . . a ‘principle of policy.’ When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.” (citing Helvering v. Hallock, 309 U.S. 106, 119 (1940))); Payne v. Tennessee, 501 U.S. 808, 828 (1991) ( “Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’” (citation omitted)); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405–06 (1932) (Brandeis, J., dissenting) ( “The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. Stare decisis 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.” (citations and internal quotation marks omitted)).

7

The Justices have latitude in how broadly or narrowly they construe their prior decisions. See Gerhardt, The Role of Precedent, supra note 7, at 98 ( “The Supreme Court can overturn or otherwise weaken precedents through explicit overrulings, overrulings sub silentio, or subsequent decisionmaking that narrows or distinguishes precedents to the point of practical nullification.” ). For more on the use of judicial precedent as a method of constitutional interpretation, see Intro.8.4 Judicial Precedent and Constitutional Interpretation. The Court has other means of avoiding a decision on whether to overrule precedent, which include the Court’s “discretionary jurisdiction” to deny certiorari, the four votes required to grant certiorari, and the Court’s rule generally limiting review to the questions presented or “fairly included” in the petition. Amy Coney Barrett, Symposium, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1731–33 (2013).

8

One study determined that the “notion that the constitutional or statutory nature of a precedent affects its susceptibility to reversal was largely rejected in the founding era and did not gain majority support until well into the twentieth century.” ). Lee, supra note 6, at 735.

John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) ( “[S]tare decisis in respect to statutory interpretation has special force, for Congress remains free to alter what we have done.” (citations and internal quotation marks omitted)); Smith v. Allwright, 321 U.S. 649, 665 (1944) ( “In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.” ); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–07 (1932) (Brandeis, J., dissenting) ( “[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.” ). The Supreme Court has suggested that stare decisis is at is weakest in cases involving rules of criminal procedure “that implicate fundamental constitutional protections.” Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013).

9

The Supreme Court’s belief in Congress’s ability to correct the Court’s errors through legislation has sometimes motivated the Court to retain precedent in cases in which Congress could enact corrective legislation. These cases encompass some disputes that implicate questions of tribal sovereign immunity, judicially created causes of action, or constraints on state action under the Commerce Clause. See South Dakota v. Wayfair, Inc., No. 17-494, slip op. at 2 (2018) (Roberts, C.J., dissenting) ( “The bar [for departing from stare decisis and overturning precedent] is even higher in fields in which Congress ‘exercises primary authority’ and can, if it wishes, override this Court’s decisions with contrary legislation.” (citations omitted)).

10

See supra note 8. Professor Michael Gerhardt notes that the political branches have other options for reversing or constraining constitutional precedents outside of amending the Constitution, such as “congressional modifications of the Court’s jurisdiction, the President’s power to nominate Justices who might agree with her criticisms of certain precedents, the Senate’s power to advise and consent to judicial nominations, and impeachment.” Gerhardt, The Role of Precedent, supra note 7, at 72 n.16.

11

These former precedents are Oregon v. Mitchell, 400 U.S. 112, 117–18 (1970) (holding that Congress could not establish a voting age of eighteen for state and local elections, but could do so for national elections), superseded by constitutional amendment, U.S. Const. amend. XXVI ( “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” ); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 637 (1895) (holding that a federal income tax violated the Constitution because it was not apportioned among the states based on congressional representation), superseded by constitutional amendment, U.S. Const. amend. XVI ( “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” ); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874) (upholding as constitutional a state law that limited the right of suffrage to men), superseded by constitutional amendment, U.S. Const. amend. XIX ( “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” ); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 452–54 (1857) (holding that former slaves lacked standing to sue in federal court because they were not citizens, and that the federal government lacked the authority to regulate slavery in the territories), superseded by constitutional amendment, U.S. Const. amends. XIII ( “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” ), and XIV ( “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” ); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 452 (1793) (holding that federal courts had jurisdiction over civil suits by private citizens against states) superseded by constitutional amendment, U.S. Const. amend. XI ( “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign state.” ).

12

See supra note 1.