Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, July 8, 2018

The Undoing Project*

With Justice Kennedy's retirement and confirmation hearings for his soon-to-be-named replacement looming, public discourse is thick with talk of stare decisis. Will/should a post-Kennedy Court overrule Roe v. Wade (or, more accurately, the "central holding" of RvW that survived Planned Parenthood v. Casey)? Obergefell v. Hodges?

I won't try to answer these questions (and, of course, neither will the nominee). And I can't begin to address, in anything short of of roomful of treatises, the complexities of the customs and law of precedent. But as the summer grinds on, I'd like to devote a few of my posts here to judicial undoing: the circumstances, process, and advocacy of overruling.

This post will get things rolling with a simple point: undoing is part of the regular—albeit not routine—order of the United States Supreme Court. Counting can get tricky, but we can say with confidence that the Court has overruled its own precedent well over 200 times.1 According to the Government Publishing Office, the Court overruled itself 236 times heading into the October 2017 term; that number is now 238 or 239, depending on how one accounts for what the Court did to Korematsu v. United States in Trump v. Hawaii. According to the Washington University Supreme Court Database, the Court has formally altered precedent 251 times heading into OT 2017. 2

Of course the stories behind these numbers often fascinate. Including the stories of the advocacy: of Thurgood Marshall and the NAACP Legal Defense Fund in Brown v. Board of Education, of summer associate John Hart Ely’s extensive work on brief in Gideon v. Wainwright, of Seattle associate Jeffrey Fisher’s brilliant briefing in Crawford v. Washington (during the same term that he argued—and won—another blockbuster, Blakely v. Washington), of Ruth Bader Ginsburg in Duren v. Missouri (Chief Justice Burger: “Mrs. Ginsburg, you may lower the lectern if you would like.”).

And there are stories in the numbers themselves. One can, crudely, track the shifts in the role of the federal judiciary from the we’re-not-undoing-much-because-there’s-not-much-to-undo Marshall Court (3 overrulings in 34 years) to the fast-pace undoings of the post-Frankfurter Warren Court (34 overrulings between 1962 and 1969). One can find, as Jonathan Adler did in a recent post at the Volokh Conspiracy, data that might give us insight into what comes next: the Roberts Court, particularly since the overruling-heavy 2006-07 term, has overruled precedent at a significantly slower pace than its postwar predecessors. Although that might change. Occasionally, the data appear to tell the story of a shift in personnel. From 1954 to early 1962, the Warren Court overturned precedent relatively slowly. But then, in the wake of the wrenching decision in Baker v. Carr (listen to this episode of the More Perfect podcast), Felix Frankfurter suffered a stroke and retired from the Court. He was replaced by Arthur Goldberg. It’s quite fair to say that the two justices were polar opposites on issues of judicial restraint. Perhaps it’s coincidence, but the Warren Court more than tripled its rate of overruling after the shift.

In my next few posts, I'll dig more into the Supreme Court and judicial undoing: the first times, the last times, the next times, and so on.

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  1. This doesn't count the first, quite famous, non-judicial undoing of a SCOTUS decision: the first post-Bill of Rights amendment to the Constitution. In 1793, the Court in Chisholm v. Georgia held that Article III, section 2 of the Constitution abrogated state sovereign immunity and thus authorized a federal court sitting in diversity to hear a war-debt claim by citizens of South Carolina against the state of Georgia. Reaction was swift: by early 1795, Congress approved and twelve states ratified the Eleventh Amendment, which clarified that the judicial power "shall not be construed" to extend to diversity actions brought against states. Other constitutional amendments have directly undone decisions of the Court: see, for example, the Sixteenth Amendment (authorizing Congress to impose income taxes; overturning Pollack v. Farmers Loan & Trust Co.), the Twenty-Sixth Amendment (lowering the voting age in state and federal elections to 18; overturning Oregon v. Mitchell), and the Section One of the Fourteenth Amendment (extending state and national citizenship to all persons born or naturalized in the United States and subject to its jurisidicion; overturning Dred Scott v. Sandford. ↩︎
  2. The actual number of cases overruled is higher, as the Court occasionally will overturn a line of precedent. In June, for example, the Court in South Dakota v. Wayfair overruled Quill Corp. v. North Dakota and National Bellas Hass Inc. v. Illinois Department of Revenue on the issue of state taxation of out-of-state retailers. Quill thus occupies a rare place in the world of bizarro stare decisis: it both overturned precedent (Bellas Hass, in part) and was itself overturned. Also on the whiplash list is National League of Cities v. Usery (overruling Maryland v. Wirtz; overruled by Garcia v. San Antonio Metro. Transit Authority. ↩︎

http://lawprofessors.typepad.com/appellate_advocacy/2018/07/the-undoing-project.html

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