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.


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3 Responses

  1. GCW321 says:

    Another method is to say that the earlier decision relied on a fact or legal proposition that has since been disproven or found to be unworkable. I don’t have a specific example in mind, but it seems fairly common for a court to say, in essence, “The holding of the earlier case may have properly followed from the facts and law as we then understood them. But because that holding rested on premises that we now realize were erroneous, we have no reason to follow it.”

  2. Joe says:

    Brown v. Bd treated Plessy in some ways like the first comment suggested.

    See, e.g., “Whatever may have been the extent of psychological knowledge at the time” and “We must consider public education in the light of its full development and its present place.” So, in effect, the facts changed.

    Justice Jackson’s unpublished concurrence particularly focused on how facts have changed. This probably happens a decent number of times too. Lawrence’s “last fifty years” comment in part is a matter of looking at the facts of recent time in respect to the “liberty” at hand. The common law method also uses such a pragmatic “unworkable” sentiment.

    “Unworkable” also repeatedly occurs. It occurred in Gideon and certain establishment cases too.

  3. JHP says:

    I would submit that the abandonment of Swift v. Tyson in Erie drops into GCW321’s bucket. The Court cited “the more recent research of a competent scholar” — Charles Warren’s 1923 Harvard Law Review article on the history of the Judiciary Act of 1789 — to “establish[] that the construction given to [the Act] by the Court [in Swift] was erroneous[.]”

    Erie also introduced the notion of declaring that the prior legal regime was too difficult to apply and therefore should be abandoned. To similar effect, sse the rejection of the distinctions created by National League of Cities in Garcia v. SAMTA.