I learned recently that once sainthood is conferred by the Catholic Church that status cannot be revoked. Not so for Supreme Court opinions or canonical legal texts. A great deal has been written about how authorities are canonized, but not much is written about the opposite–how are they delegitimized? I haven’t thought this through fully, but here are some tentative ideas:
1. “Ignoring.” If a certain text or opinion stops getting attention, then its authority diminishes. Consider in this context Bowers v. Hardwick, which was totally ignored by the Court’s opinion in Romer. That was the way station for overruling Bowers in Lawrence v. Texas.
2. “Yesterday’s News.” Age can confer or detract from authority depending on how you frame the argument, but a precedent can be dispatched by just labeling it as old or obsolete. To some extent this is what happened to the Warren Court cases on the Voting Rights Act in Shelby County.
3. “Too Brief.” Courts often attack precedent by saying that a prior court did not say much about an issue. As if to say that the prior court wasn’t paying close attention, which may be true, but may also reflect the fact that at the time the issue wasn’t considered close. Chief Justice Roberts did this last week in McCutcheon by rejecting contrary language in Buckley v. Valeo as “just three sentences.”
4. Say that the precedent was wrong from the day it was decided. This has been done many times.
I would have to look at more examples where precedents were overruled to get a better sense of this.