OVERRULING

The authority of the Supreme Court to reconsider and overrule its previous decisions is a necessary and accepted part of the Court's power to decide cases. By one estimate, the Supreme Court overruled itself on constitutional issues 159 times through 1976 and in each case departed from the doctrine of stare decisis.

The basic tenet of stare decisis, as set forth by william blackstone, is that precedents must generally be followed unless they are "flatly absurd" or "unjust." The doctrine promotes certainty in the law, judicial efficiency (by obviating the constant reexamination of previously settled questions), and uniformity in the treatment of litigants. The roots of the doctrine, which is fundamental in Anglo-American jurisprudence, have been traced to Roman civil law and the Code of Justinian.

Justices and commentators have disagreed about the proper application of stare decisis to constitutional decision making. Justice (later Chief Justice) edward d. white, in his dissenting opinion in pollock v. farmers loan trust co. (1895), observed:

The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its precedessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of people.

Under this view, stare decisis should be applied with full force to constitutional issues.

The more commonly accepted view is that stare decisis has a more limited application in constitutional interpretation than it does in the interpretation of statutes or in ordinary common law decision making. Although Congress, by a simple majority, can override the Supreme Court's erroneous interpretation of a congressional statute, errors in the interpretation of the Constitution are not easily corrected. The amending process is by design difficult. In many instances only the Court can correct an erroneous constitutional decision.

Moreover, the Court will on occasion make decisions that later appear to be erroneous. As Chief Justice john marshall remarked in mcculloch v. maryland (1819), the Constitution requires deductions from its "great outlines" when a court decides specific cases. Because the modern Supreme Court generally accepts for review only cases in which principles of broad national importance are in competition, its decisions necessarily involve difficult questions of judgment. In view of the difficulties inherent in amending the Constitution, any errors made by the Court in the interpretation of constitutional principles must be subject to correction by the Court in later decisions.

The classic statement of this view was expressed by Justice louis d. brandeis in his dissenting opinion in Burnet v. Coronado Oil Gas Co. (1932): "[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." The Court has relied on Brandeis's reasoning in later decisions, such as edelman v. jordan (1974), overruling previous constitutional precedents.

An additional reason for applying stare decisis less rigidly to constitutional decisions is that the judge's primary obligation is to the Constitution itself. In the words of Justice felix frankfurter, concurring in Graves v. New York (1939), "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."

Some critics of stare decisis suggest that it has no place whatsoever in constitutional cases. For example, Chief Justice roger b. taney reasoned in the passenger cases (1849) that a constitutional question "is always open to discussion" because the judicial authority of the Court should "depend altogether on the force of the reasoning by which it is supported." The more generally accepted view, however, was stated by the Court in Arizona v. Rumsey (1984): "Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis requires special justification." Consistent with this view, the Supreme Court generally seeks to provide objective justification for the overruling of past precedents, apart from the fact that the Court's personnel may have changed.

One of the most commonly expressed reasons for overruling a previous decision is that it cannot be reconciled with other rulings. This rationale is in a sense consistent with stare decisis in that the justification for the overruling decision rests on competing but previously established judicial principles. In gideon v. wainwright (1963), for example, which overruled betts v. brady (1942), the Court asserted not only that the rationale of Betts was erroneous but also that Betts had abruptly departed from well-established prior decisions. Betts had held that the due process clause of the fourteenth amendment does not impose on the states, as the Sixth Amendment imposes on the federal government, the obligation to provide counsel in state criminal proceedings. Gideon expressly rejected this holding, thereby ruling that indigent defendants have the right to appointed counsel in such cases. Similarly, in west coast hotel co. v. parrish (1937) the Court concluded that it had no choice but to overrule its earlier decision in adkins v. children ' shospital (1923), which had held a minimum wage statute for women unconstitutional under the due process clause. The Court reasoned that Adkins was irreconcilable with other decisions permitting the regulation of maximum hours and other working conditions for women.

The Court frequently argues, too, that the lessons of experience require the overruling of a previous decision. In erie railroad co. v. tompkins (1938), for example, the Court reasoned that in nearly one hundred years the doctrine of swift v. tyson (1842) "had revealed its defects, political and social." And in mapp v. ohio (1961) the Court held the exclusionary rule applicable to the states, saying that the experience of various states had made clear that remedies other than the exclusionary rule could not effectively deter unreasonable searches and seizures. The Court therefore overruled wolf v. colorado (1949), which only two decades earlier had ruled that states were free to devise their own remedies for enforcing search and seizure requirements applicable to the states through the due process clause of the Fourteenth Amendment.

The Court also justifies overruling decisions on the basis of changed or unforeseen circumstances. In brown v. board of education (1954), for example, the Court referred to the change in status of the public schools in rejecting the application of the separate but equal doctrine of plessy v. ferguson (1896). And in propeller genesee chief v. fitzhugh (1851), one of the earliest overruling decisions, the Court stressed that when it had erroneously held in The Thomas Jefferson (1825) that the admiralty and maritime jurisdiction of the federal government was limited "to the ebb and flow of the tide," commerce on the rivers of the West and on the Great Lakes had been in its infancy and "the great national importance of the question … could not be foreseen."

Other considerations may also suggest a decision's susceptibility to being overruled. Thus a decision on an issue not fully briefed and argued may be entitled to less precedential weight than one in which the issue received full and deliberate consideration. Or, the fact that an issue was decided by a closely divided Court may suggest a higher probability of error and make later reconsideration more likely. By contrast, as the Court recognized in Akron v. Akron Center for Reproductive Health (1983), a carefully considered decision, repeatedly and consistently followed, may be entitled to more respect than other constitutional holdings under principles of stare decisis.

As the Court develops constitutional doctrine, it may limit or distinguish a previous decision, gradually eroding its authority without expressly overruling it. Such a doctrinal evolution may both portend an overruling decision and establish the groundwork for it.

The Court's willingness to reconsider its prior constitutional decisions and in some instances to overrule itself is implicit in the general understanding of the Constitution as a document of broad outlines intended to endure the ages. Yet it has been suggested that the Court risks a loss of confidence as a disinterested interpreter of the Constitution whenever it overrules itself. Because of its antimajoritarian character, the Court must be sensitive to the need for restraint in exercising its power of judicial review. If it overrules itself too frequently and without adequate justification, its reputation may suffer. The Constitution's general language, however, leaves wide room for honest differences as to its interpretation and application. An objective and detached overruling opinion, which faithfully seeks to apply constitutional principles on the basis of the constitutional text and history, is on occasion to be expected and need not jeopardize public confidence in the Court.

James R. Asperger
(1986)

Bibliography

Bernhardt, Charlotte C. 1948 Supreme Court Reversals on Constitutional Issues. Cornell Law Quarterly 34:55–70.

Blaustein, Albert P. and Field, Andrew H. 1958 "Overruling" Opinions in the Supreme Court. Michigan Law Review 57:151–194.

Israel, Jerold H. 1963 Gideon v. Wainwright: The "Art" of Overruling. Supreme Court Review 1963:211–272.

Noland, Jon D. 1969 Stare Decisis and the Overruling of Constitutional Decisions in the Warren Years. Valparaiso University Law Review 4:101–135.

Reed, Stanley 1938 Stare Decisis and Constitutional Law. Pennsylvania Bar Association Quarterly 1938:131–150.