Originally published by Thomas J. Crane.
It is extremely rare for the U.S. Supreme Court to overturn one of its prior decisions. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), comes to mind. But, that decision overruled the “separate but equal” ruling in Plessy v. Ferguson, 163 U.S. 537 (1896) decision. See that decision in Brown v. Board of Education here. That doctrine had long been shown to have been wrong and unworkable. So, on some level, the decision in Brown v. Board of Education was not surprising. Sooner or later, that decision would have been issued. The Supreme Court does not have to overrule a prior decision to change the law. The court can re-interpret the old decision to mean something else. When a court specifically overrules a prior decision, it is saying the decision was flat wrong on the law. A court is going the extra mile to specifically overrule a prior decision.
Precedent has value, because businesss, people and the economy rely on a predictable body of law. Changing the law has untold ripple effects.
According to CNN, the Supreme Court has reversed one of its prior decisions only 300 times in the past 200 years. Most often when it does so, it reverses itself within the first 20 years or so of the decision. See CNN news report here. Most of these decisions concern relatively obscure areas of law that do not affect many Americans.
Yet, within the past 12 months, the Supreme Court has reversed three major decisions. In 2018, the court overruled some 45 years of precedent regarding deduction of unions dues in Janus v. American Federation, 585 U.S. ___ (2018). That decision changed the law to reflect that non-union members could not be compelled to pay for union negotiations. In this decision, the majority decision said stare decisis (i.e. prior decision) is not an “inexorable command.”
That is an odd thing for any judge to stay. In the legal business, we rely on precedent and prior procedures. Every lawyer builds every motion, memo, letter on a prior example s/he obtained from someone else. We live by precedent. For a judge, at the apex of a 30 or 40 year career to stare decisis is not a command is odd.
This year, in Franchise Tax Board of California v. Hyatt, 139 S.Ct. 1485 (2019), the Supreme Court overruled a precedent from 1979. That decision changed the prior law to rule that a state cannot be sued in the court of another state. And, again, the majority decision said stare decisis is not an “inexorable command.” Lawyers and judges are inherently conservative. We rely on old things. We prefer not to seek changes in the law, if we can help it. It is odd that a senior judge will dismiss the doctrine of stare decisis.
One of the dissenting judges, Stephen Bryer, commented that the courts should not overturn a decision, simply because they do not like the decision. A decision should be overturned only when the old ruling defies practical workability – when the decision has been left behind by related principles of law. He did not mention the decision in Brown v. Board of Education of Topeka, but that is what he meant. The old law must be so clearly abandoned by other legal principles that it must be specifically jettisoned, not simply re-interpreted.
And, this year, in Knick v. Township of Scott, No. 17-647 (6/21/2019), the court reversed another decision from 1985 and held that a person could sue a local government for a taking, even if state law provided recourse. See ABA Bar Journal report here.
The Supreme Court did not overrule prior precedent regarding double jeopardy in Gamble v. U.S., No. 17-646 (6/17/2019). But, it was remarkable that some observers thought the court might overrule hundreds of years of precedent regarding double jeopardy.
It is a strange thing that the current Supreme Court has overruled three major prior precedents within the past 12 months. It is rare that many observers thought the Supreme Court might overrule some 170 years of precedent regarding double jeopardy. We are in uncharted waters.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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