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.

There are several factors the Supreme Court weighs when determining whether to reaffirm or overrule a prior decision interpreting the Constitution.1 First, the Supreme Court may consider the quality of the decision’s reasoning.2 Another factor that the Supreme Court has considered when determining whether to overrule a precedent is whether a rule or standard that the prior case establishes for determining the constitutionality of a government action is too difficult for lower federal courts or other interpreters to apply and is thus “unworkable.” 3 A third factor the Supreme Court may consider is whether the precedent departs from the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by later decisions,4 or because the precedent is a recent outlier when compared to other decisions.5

The Supreme Court has also indicated that changes in how the Justices and society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule it.6 Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling the decision would result in hardship to individuals, companies, or organizations;7 society as a whole;8 or legislative,9 executive,10 or judicial branch officers,11 who relied on the decision’s guidance as to which actions and practices comport with the Constitution.12

It is difficult to predict when the Supreme Court will overrule precedent because the Court has not provided an exhaustive list of the factors it uses to determine whether a decision should be overruled, or explained how it weighs them. Although much about how the Supreme Court views precedent remains unclear, the Court’s factors for determining whether to retain or overrule precedent provides the Justices with significant discretion.13 If the Court is unable to distinguish a precedent from the case before it, the Justices generally attempt to strike a delicate balance between maintaining a stable jurisprudence on which parties can rely,14 while preserving sufficient flexibility to correct errors.15

Footnotes

1

Some Justices have argued that the Supreme Court’s current stare decisis factors are confusing and should be revised to provide a better roadmap for decisionmaking. See, e.g., Ramos v. Louisiana, No. 18-5924, slip op. at 7-8 (2020) (Kavanaugh, J., concurring in part) (describing the Supreme Court’s jurisprudence on the stare decisis factors as a “muddle” and identifying three stare decisis factors: the merits of the decision, the precedent’s practical consequences, and reliance interests).

2

See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 636-42 (1943) (overruling the Supreme Court’s three-year-old decision in Minersville School District v. Gobitis, 310 U.S. 586 (1940), which had upheld a state law compelling students to salute the American flag, because of significant disagreements with the Gobitis Court’s analysis of the First Amendment, the importance of national unity, and other issues).

3

See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (overruling Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), because Usery's rule for when state activities qualified for immunity from congressional regulation under the Commerce Clause had become unworkable, and the lower courts could not apply it consistently). See also Montejo v. Louisiana, 556 U.S. 778, 792 (2009) ( “[T]he fact that a decision has proved ‘unworkable’ is a traditional ground for overruling it.” ).

4

United States v. Gaudin, 515 U.S. 506, 521 (1995) ( “And we think stare decisis cannot possibly be controlling when . . . the decision in question has been proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court.” ).

5

See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 233-34 (1995) (overruling Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990), because it departed from a long line of precedents holding that the Fifth Amendment does not impose a lesser duty on the federal government than the Fourteenth Amendment’s Equal Protection Clause imposes on state governments). See also Michael Stokes Paulsen, Does the Supreme Court’s Current Doctrine of Stare Decisis Require Adherence to the Supreme Court’s Current Doctrine of Stare Decisis?, 86 N.C. L. Rev. 1165, 1189 (2008) ( “[A]ny fair discussion of the remnant-of-abandoned-doctrine factor of the Court’s current stare decisis analysis must reckon with the seemingly equal but opposite restoration-of-departed-from doctrine counter-factor.” ). Occasionally, the Justices disagree over which line of precedent the Court should retain, and which line of precedent it should overrule or ignore. Compare Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) (Kennedy, J., for the majority) (striking down a Texas law that banned private, consensual same-sex sexual activity as violating the Fourteenth Amendment’s Due Process Clause and overruling Bowers v. Hardwick, 478 U.S. 186 (1986), in part because Bowers was inconsistent with subsequent Supreme Court precedents that protected personal autonomy to make decisions related to the family and intimate conduct), with Lawrence, 539 U.S. at 588 (Scalia, J., dissenting) (characterizing the precedents that the majority relied upon as outliers whose legal foundations had been eroded by a 1997 case holding that only “fundamental rights” that are “deeply rooted in [the] Nation’s history and tradition” qualified for enhanced protection under the Due Process Clause) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted)).

6

Casey, 505 U.S. at 855 (plurality opinion) (discussing the inquiry into whether “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification” ). See also, e.g., South Dakota v. Wayfair, No. 17-494, slip op. at 18-19, 23-24 (2018) (overturning two precedents and determining that the Commerce Clause does not restrict states from requiring retailers that lack a physical presence in the state, such as Internet retailers, to collect and remit taxes on sales made to state residents). The Wayfair Court noted that the U.S. economy had changed drastically, with a marked increase in the prevalence and power of Internet access and concomitant increases in retailers selling goods remotely to consumers. Id. See also West Coast Hotel v. Parrish, 300 U.S. 379, 390, 400 (1937) (overruling Adkins v. Children’s Hosp., 261 U.S. 525 (1923), and stating that “the economic conditions which have supervened” during the Great Depression required reconsideration of the “exercise of the protective power of the state” to institute minimum wage laws).

7

See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) ( “Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved . . . the opposite is true in cases such as the present one involving procedural and evidentiary rules.” (citations omitted)); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) ( “[A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.” ); Lee, supra 6, at 691-703, 734.

8

See, e.g., Dickerson v. United States, 530 U.S. 428, 431-32, 443 (2000) (declining to overrule the Court’s 1966 decision in Miranda v. Arizona because the Miranda decision had “become embedded in routine police practice to the point where the warnings have become part of our national culture” ).

9

Some Justices have argued that legislators may rely on the Supreme Court’s decisions about the constitutionality of certain types of laws. See, e.g., Lawrence, 539 U.S. at 589-90 (Scalia, J., dissenting) (arguing that numerous legislators had relied on the Court’s decision in Bowers v. Hardwick when enacting laws regulating certain sexual behaviors deemed immoral by the governing majority).

10

See, e.g., Arizona v. Gant, 556 U.S. 332, 358-59 (2009) (Alito, J., dissenting) (arguing that the majority had effectively overruled New York v. Belton, 453 U.S. 454 (1981), and thereby upset law enforcement officers’ reliance on a precedent addressing the permissibility under the Fourth Amendment of searching a vehicle’s occupant after arrest).

11

Judges often rely on precedent, both explicitly by citing to precedent in their opinions, and implicitly, by accepting principles established by precedent, such as the power of judicial review. See, e.g., Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 805 (2015) (relying on three cases from the early twentieth century in holding that Arizona voters could remove from the state legislature the authority to redraw the boundaries for legislative districts and vest that authority in an independent commission). See also, e.g., Johnson v. United States, 576 U.S. 591, 606 (2015) (striking down part of a federal law as unconstitutional without citing Marbury v. Madison).

12

See, e.g., Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring in part) (stating that stare decisis “protects the legitimate expectations of those who live under the law” ); Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991) (stating that stare decisis “has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response” ) See also Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 Wash. & Lee L. Rev. 411, 452 (2010) ( “The universe of reliance interests can be usefully (if roughly) divided into four categories: reliance by specific individuals, groups, and organizations; reliance by governments; reliance by courts; and reliance by society at large.” ).

13

Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 399 (2006) (statement of then-Judge Alito) ( “They have said there has to be a special justification for overruling a precedent. There is a presumption that precedents will be followed. But it is not—the rule of stare decisis is not an inexorable command, and I don’t think anybody would want a rule in the area of constitutional law that . . . said that a constitutional decision, once handed down, can never be overruled.” ).

14

See, e.g., Hilton, 502 U.S. at 202 ( “Adherence to precedent promotes stability, predictability, and respect for judicial authority.” ); Payne v. Tennessee, 501 U.S. 808, 827 (1991) ( “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” ); Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986) ( “[T]he important doctrine of stare decisis [is] the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” ).

15

See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) ( “Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established.” ); Smith v. Allwright, 321 U.S. 649, 665 (1944) ( “[W]hen convinced of former error, this Court has never felt constrained to follow precedent. 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.” ).