Appellate Advocacy Blog

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

Tuesday, May 11, 2021

Zombie Precedents? Stare Decisis and the New Footnote Fourt in Jones v. Mississippi

The Supreme Court’s recent decision in Jones v. Mississippi purported to do all the right things with respect to precedent cases. The majority claimed to uphold precedents like Miller v. Alabama that highlighted the intransigence of youth and the need for courts to consider whether a juvenile defendant is permanently incorrigible before sentencing them to life without parole.[1] It then noted Montgomery v. Louisiana’s holding that Miller’s rule was substantive, and therefore applied retroactively on collateral review.[2] Yet in the opinion’s fourth footnote, the majority purported to limit Montgomery’s holding, stating that because it was in “tension” with other retroactivity cases, Montgomery “should not guide the determination of whether rules other than Miller are substantive.[3] Essentially, the majority acknowledged its disagreement with the holding of Montgomery—that Miller’s rule was substantive and not procedural—but refused to overrule it, saying that it ought to be a one-of-a-kind precedent courts in future retroactivity cases should feel free to ignore. Perhaps unsurprisingly, the Court then rejected the juvenile petitioner’s argument that under Montgomery a court could only sentence him to life without parole after making and on-the-record finding that he was permanently incorrigible.[4]  

Will footnote four in Jones come to rival other famous fourth footnotes in Constitutional jurisprudence?[5] That all depends on one’s conception of stare decisis and its meaning. It might create categories of precedents not just limited to their facts, but limited in their peculiar readings of long-standing doctrinal puzzles. Sure, one might say, Montgomery still stands as a precedent holding that Miller retroactive, but its comments on retroactivity doctrine and the distinction between substantive and procedural rules do not extend to future cases. Thus, Montgomery still exists, but has limited value in the development of retroactivity doctrine. It stands as a unique form of zombie precedent that appears all but dead, yet stills lurk the corridors of the United States Reports.[6]

Several Justices challenged footnote four’s approach, though they raised conflicting critiques of the zombie precedent model. Justice Thomas’s concurrence and Justice Sotomayor’s dissent used differing versions of stare decisis to make their points. First, Justice Thomas cited to his opinion Gamble v. United States that would permit overruling any “demonstrably erroneous” precedent, without further analysis, to argue that Montgomery could not survive and should be directly overruled.[7] As I’ve noted in an earlier post, that trend towards a weaker version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone, has taken root on the Court in the last decade, though it is yet to garner a clear majority of the Justices’ support. On the other hand, Justice Sotomayor relied upon a stronger conception of stare decisis traceable to 1992’s Planned Parenthood v. Casey.[8] That conception of stare decisis only permits the Justices to overrule based upon special justifications beyond “poor reasoning,” such as unworkability, special reliance interests, new legal developments, or vastly changed facts.[9] Applying those possibly justifications, Sotomayor and her colleagues saw no reason to overrule Montgomery’s retroactivity holding, then chided the majority for seemingly overruling it nonetheless.[10]

The Jones majority’s effort to render Montgomery a zombie precedent introduced a new battle front in the larger ongoing war over the future of stare decisis. Justices that support both the strong and weak version of stare decisis should take note of the possibilities and perils that such zombie precedents present. Jones’s footnote four has the potential to become a flashpoint in the stare decisis debate for years to come.


[1] Jones v. Mississippi, 141 S.Ct. 1307, 1317-19 (2021).

[2] Jones v. Mississippi, 141 S.Ct. 1307, 1317 (2021).

[3] Jones v. Mississippi, 141 S.Ct. 1307, 1317 n. 4  (2021).

[4] Jones v. Mississippi, 141 S.Ct. 1307, 1321 (2021).

[5] See United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938).

[6] These should not be confused with “phantom precedents,” which are decisions the Court finds so incomprehensible that they may never have existed at all.

[7] Jones v. Mississippi, 141 S.Ct. 1307, 1323 (2021) (Thomas, J., concurring).

[8] 505 U.S. 833, 854-55 (1992) (plurality opinion).

[9] For more on the competing strands of the stare decisis doctrine, see Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 98-112 (2020).

[10] Jones v. Mississippi, 141 S.Ct. 1307, 1330, 1335-36 (2021) (Sotomayor, J., dissenting).

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