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Article III, Section 1 — Supreme Court Rulings

Article III, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Essays on this page (10)

ArtIII.S1.7 Supreme Court Rulings

ArtIII.S1.7.1 Overview of Supreme Court Rulings

Along with the Constitution and federal statutes, rulings of the Supreme Court are a key source of the law of the United States. In the view of many judges and commentators, Supreme Court decisions do not make law, which is the province of the Legislative Branch, but instead interpret and apply the Constitution and statutes.1 Chief Justice John Marshall famously stated in the 1803 case Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.”2 Over two centuries later, when nominated to be Chief Justice, then-Judge John Roberts likened the role of a Justice to the role of a baseball umpire who does not make the rules or play the game but instead simply applies the rules “to call balls and strikes.”3

Nonetheless, as a practical matter, Supreme Court decisions may change the legal landscape by resolving open legal questions, striking down unconstitutional laws or government actions, or overruling prior judicial decisions. Court-created legal doctrines determine the scope and effect of those changes. For instance, the doctrine of stare decisis counsels against the Court overruling its past decisions absent special justification to depart from precedent.4 In addition, a number of Supreme Court cases have addressed the extent to which Court decisions announcing new rules of law apply retroactively.5

Notes
  1. See, e.g., Linkletter v. Walker, 381 U.S. 618, 622–23 (1965) (quoting 1 W. BLACKSTONE, COMMENTARIES 69) (stating that, at common law, “the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one’”); but see, e.g., Geoffrey C. Hazard Jr., The Supreme Court as a Legislature, 64 CORNELL L. REV. 1 (1978). ↩
  2. 5 U.S. 137, 177 (1803). ↩
  3. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Hearings before the Committee on the Judiciary, United States Senate, 109th Cong. 2005. ↩
  4. See ArtIII.S1.7.2.2 Stare Decisis Doctrine Generally. ↩
  5. See ArtIII.S1.7.3.1 Overview of Retroactivity of Supreme Court Decisions. ↩

ArtIII.S1.7.2 Stare Decisis

ArtIII.S1.7.2.1 Historical Background on Stare Decisis Doctrine

Stare decisis, Latin for “to stand by things decided,”1 is a judicial doctrine under which a court follows the principles, rules, or standards of its prior decisions (or decisions of higher tribunals) when deciding a case with arguably similar facts.2 The doctrine of stare decisis has “horizontal” and “vertical” aspects. A court adhering to the principle of horizontal stare decisis will follow its own prior decisions absent exceptional circumstances (e.g., the Supreme Court follows a precedent unless it has become too difficult for lower courts to apply).3 By contrast, vertical stare decisis binds lower courts to follow strictly the decisions of higher courts within the same jurisdiction (e.g., a federal court of appeals must follow the decisions of the U.S. Supreme Court, the federal court of last resort).4

The doctrine of stare decisis in American jurisprudence has its roots in eighteenth-century English common law. In 1765, the English jurist William Blackstone described the doctrine of English common law precedent as establishing a strong presumption that judges, to promote stability in the law, would “abide by former precedents, where the same points come again in litigation” unless such precedents were “flatly absurd or unjust.”5 At least some of the Constitution’s Framers favored judges’ adherence to judicial precedent because it limited judges’ discretion to interpret ambiguously worded provisions of law. For example, writing in the Federalist No. 78 during the debates over adoption of the Constitution in an essay addressing concerns about judicial power, Alexander Hamilton argued that courts should apply precedent to prevent judges from having unbounded discretion to interpret ambiguous legal texts.6

During Chief Justice John Marshall’s tenure in the early 1800s, the newly created Supreme Court combined a strong preference for adhering to precedent with a “limited notion of error correction” when precedents had been eroded by subsequent decisions7 or were “premised on an incomplete factual record.”8 The early Court was reluctant to overrule prior decisions when doing so would upset commercial reliance interests (e.g., precedents concerning matters of property or contract law).9

Notes
  1. The full Latin phrase is “stare decisis et non quieta movere—stand by the thing decided and do not disturb the calm.” See James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, The Constitution, and the Supreme Court, 66 B.U. L. REV. 345, 347 (1986). ↩
  2. Stare Decisis, BLACK’S LAW DICTIONARY 1626 (10th ed. 2014) (defining “stare decisis” as “the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation”); id. at 1366 (defining “precedent” as “a decided case that furnishes a basis for determining later cases involving similar facts or issues”). This essay does not examine the Supreme Court’s reliance on the precedents of state court or foreign tribunals. It also does not examine how the Court determines whether a particular sentence in an opinion is a binding holding necessary to the decision for purposes of stare decisis or, rather, non-binding obiter dictum. See generally Obiter dictum, BLACK’S LAW DICTIONARY 1177 (9th ed. 2009) (defining “obiter dictum” as a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)”). ↩
  3. Horizontal stare decisis, BLACK’S LAW DICTIONARY 1537 (10th ed. 2014) (defining “horizontal stare decisis” as “the doctrine that a court . . . must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself”). ↩
  4. See id. (defining “vertical stare decisis” as “the doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction”). ↩
  5. 1 WILLIAM BLACKSTONE COMMENTARIES ON THE LAWS OF ENGLAND 69–70 (describing precedent as “a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments”). ↩
  6. FEDERALIST NO. 78, at 439 (Clinton Rossiter ed., 1999) (“To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . . .”). Historical sources provide only limited insight into the Founders’ views on stare decisis, and it is unclear whether Alexander Hamilton was referring to the presumption that a court should adhere to its own prior decisions or, rather, those of higher tribunals. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 664 (1999). Other Founders held similar views on the benefits of precedent. See, e.g., 1 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 167–68 (L.H. Butterfield, ed., 1961) (draft of Nov. 5, 1760) (“[E]very possible Case being thus preserved in Writing, and settled in a Precedent, leaves nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge.”). See also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 9 (2001) (“[C]oncern about such discretion was a common theme throughout the antebellum period; in one form or another, it shaped most antebellum explanations of the need for stare decisis.”). But see Letter from James Madison to C.E. Haynes (Feb. 25, 1831), reprinted in 9 THE WRITINGS OF JAMES MADISON 443 (Gaillard Hunt ed., 1910) (“That cases may occur which transcend all authority of precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.”). ↩
  7. See, e.g., Gordon v. Ogden, 28 U.S. (3 Pet.) 33, 34 (1830) (involving statutory construction). ↩
  8. Lee, supra note 6, at 681–87, 734. See, e.g., United States v. Percheman, 32 U.S. (7 Pet.) 51, 88–89 (1833). ↩
  9. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) (“[A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.”). See also Lee, supra note 6, at 691. ↩

ArtIII.S1.7.2.2 Stare Decisis Doctrine Generally

In the modern era, the Supreme Court has applied the doctrine of stare decisis by following the rules of its prior decisions unless there is a “special justification”—or, at least, “strong grounds”—to overrule precedent.1 This justification must amount to more than a disagreement with a prior decision’s reasoning.2 In adopting this approach, the Court has rejected a strict view of stare decisis that would require it to adhere to its prior decisions regardless of those decisions’ merits or the practical implications of retaining or discarding precedent.3 Instead, while the Court has stated that its precedents are entitled to respect and deference,4 the Court considers the principle of stare decisis to be a discretionary “principle of policy” to be weighed and balanced along with the Court’s views about a prior decision’s merits, along with several pragmatic considerations, when determining whether to retain precedent in interpreting the Constitution5 or deciding whether to hear a case.6 Notably, the Court may avoid having to decide whether to overrule precedent if it can distinguish the law or facts of a prior decision from the case before it, or limit the prior decision’s holding so it is inapplicable to the instant case.7

The Supreme Court has established special rules for applying stare decisis in constitutional cases. During the twentieth century,8 the Court adopted a weaker form of stare decisis when deciding cases that implicated a prior constitutional interpretation, rather than a previous interpretation of a federal statute.9 The Court has sought to justify this approach on the grounds that Congress may amend federal laws to address what it deems to be erroneous judicial statutory interpretations, whereas amending the Constitution to overturn a Supreme Court precedent is much more difficult.10 In fact, in the history of the United States, only five Supreme Court precedents have been overturned through constitutional amendment.11 Despite the Court’s assertion that it applies a weaker form of stare decisis in constitutional cases, the Court still requires a “special justification” or at least “strong grounds” for overruling constitutional precedents.12

Notes
  1. See Janus v. Am. Fed. of State, Cnty., & Mun. Emps., No. 16-1466, slip op. at 34 (2018) (“We will not overturn a past decision unless there are strong grounds for doing so.”); Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (“Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.”). For a list of Supreme Court decisions on constitutional law questions that the Court has overruled during its more than 225-year history, see Table of Supreme Court Decisions Overruled by Subsequent Decisions, https://constitution.congress.gov/resources/decisions-overruled/. Legal scholars continue to debate questions surrounding the doctrine of stare decisis that are beyond the scope of this essay, such as whether the Constitution requires (or even allows) the Supreme Court to follow precedent, and whether Congress could abolish stare decisis in constitutional cases. See, e.g., Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 571 (2001); Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535, 1548 (2000). ↩
  2. Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 455 (2015) (“[A]n argument that [the Court] got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.”). ↩
  3. Cf. Super stare decisis, BLACK’S LAW DICTIONARY 1537 (9th ed. 2009) (defining “super stare decisis” as “the theory that courts must follow earlier court decisions without considering whether those decisions were correct”). A court following a prior decision because it was correctly decided is not adhering to stare decisis; it is merely reaffirming precedent. See Fallon, supra note 1, at 570 (“If a court believes a prior decision to be correct, it can reaffirm that decision on the merits without reference to stare decisis.”). ↩
  4. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 362 (2010) (“Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”). ↩
  5. Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 GEO. WASH. L. REV. 68, 73, 134–35 (1991) [hereinafter Gerhardt, The Role of Precedent] (describing the Court’s review of its precedents as a “process in which the Justices individually try to balance their respective views on how the Constitution should be interpreted and certain social or institutional values such as the need for stability and consistency in constitutional law”). Sometimes a Justice’s judicial philosophy may conflict with precedent, potentially requiring a Justice to choose between following his or her philosophy, or making a pragmatic exception to it in order to maintain stability in the law. For example, some proponents of textualism and original meaning as methods of constitutional interpretation object to the use of judicial precedent that conflicts with the Constitution’s text and its original meaning. In their view, this approach to precedent favors the Supreme Court’s views over the views of those who ratified the Constitution, thereby allowing mistaken constitutional interpretations to persist. See Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 769–70 (1988). Nevertheless, textualists and originalists may adhere to precedent for pragmatic reasons, such as when doing so would promote stability in the law. For example, Justice Antonin Scalia, a textualist and originalist, followed long-standing precedent allowing for the Supreme Court to incorporate rights specifically enumerated in the Bill of Rights against state governments, even though he harbored significant doubts that such incorporation comported with the Constitution’s original meaning. See, e.g., McDonald v. City of Chi., 561 U.S. 742, 791 (2010) (Scalia, J., concurring) (“Despite my misgivings about substantive due process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights ‘because it is both long established and narrowly limited.’” (citing Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring)). ↩
  6. See Citizens United, 558 U.S. at 378 (Roberts, C.J., concurring) (“Stare decisis is . . . a ‘principle of policy.’ When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.” (citing Helvering v. Hallock, 309 U.S. 106, 119 (1940))); Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’” (citation omitted)); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405–06 (1932) (Brandeis, J., dissenting) (“The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. Stare decisis is usually the wise policy, because, in most matters it is more important that the applicable rule of law be settled than that it be settled right.” (citations and internal quotation marks omitted)). ↩
  7. The Justices have latitude in how broadly or narrowly they construe their prior decisions. See Gerhardt, The Role of Precedent, supra note 7, at 98 (“The Supreme Court can overturn or otherwise weaken precedents through explicit overrulings, overrulings sub silentio, or subsequent decisionmaking that narrows or distinguishes precedents to the point of practical nullification.”). For more on the use of judicial precedent as a method of constitutional interpretation, see Intro.8.4 Judicial Precedent and Constitutional Interpretation. The Court has other means of avoiding a decision on whether to overrule precedent, which include the Court’s “discretionary jurisdiction” to deny certiorari, the four votes required to grant certiorari, and the Court’s rule generally limiting review to the questions presented or “fairly included” in the petition. Amy Coney Barrett, Symposium, Precedent and Jurisprudential Disagreement, 91 TEX. L. REV. 1711, 1731–33 (2013). ↩
  8. One study determined that the “notion that the constitutional or statutory nature of a precedent affects its susceptibility to reversal was largely rejected in the founding era and did not gain majority support until well into the twentieth century.”). Lee, supra note 6, at 735. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (“[S]tare decisis in respect to statutory interpretation has special force, for Congress remains free to alter what we have done.” (citations and internal quotation marks omitted)); Smith v. Allwright, 321 U.S. 649, 665 (1944) (“In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.”); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–07 (1932) (Brandeis, J., dissenting) (“[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.”). The Supreme Court has suggested that stare decisis is at is weakest in cases involving rules of criminal procedure “that implicate fundamental constitutional protections.” Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013). ↩
  9. The Supreme Court’s belief in Congress’s ability to correct the Court’s errors through legislation has sometimes motivated the Court to retain precedent in cases in which Congress could enact corrective legislation. These cases encompass some disputes that implicate questions of tribal sovereign immunity, judicially created causes of action, or constraints on state action under the Commerce Clause. See South Dakota v. Wayfair, Inc., No. 17-494, slip op. at 2 (2018) (Roberts, C.J., dissenting) (“The bar [for departing from stare decisis and overturning precedent] is even higher in fields in which Congress ‘exercises primary authority’ and can, if it wishes, override this Court’s decisions with contrary legislation.” (citations omitted)). ↩
  10. See supra note 8. Professor Michael Gerhardt notes that the political branches have other options for reversing or constraining constitutional precedents outside of amending the Constitution, such as “congressional modifications of the Court’s jurisdiction, the President’s power to nominate Justices who might agree with her criticisms of certain precedents, the Senate’s power to advise and consent to judicial nominations, and impeachment.” Gerhardt, The Role of Precedent, supra note 7, at 72 n.16. ↩
  11. These former precedents are Oregon v. Mitchell, 400 U.S. 112, 117–18 (1970) (holding that Congress could not establish a voting age of eighteen for state and local elections, but could do so for national elections), superseded by constitutional amendment, U.S. CONST. amend. XXVI (“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 637 (1895) (holding that a federal income tax violated the Constitution because it was not apportioned among the states based on congressional representation), superseded by constitutional amendment, U.S. CONST. amend. XVI (“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874) (upholding as constitutional a state law that limited the right of suffrage to men), superseded by constitutional amendment, U.S. CONST. amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 452–54 (1857) (holding that former slaves lacked standing to sue in federal court because they were not citizens, and that the federal government lacked the authority to regulate slavery in the territories), superseded by constitutional amendment, U.S. CONST. amends. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”), and XIV (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 452 (1793) (holding that federal courts had jurisdiction over civil suits by private citizens against states) superseded by constitutional amendment, U.S. CONST. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign state.”). ↩
  12. See supra note 1. ↩

ArtIII.S1.7.2.3 Stare Decisis Factors

There are several factors the Supreme Court weighs when determining whether to reaffirm or overrule a prior decision interpreting the Constitution.1 First, the Supreme Court may consider the quality of the decision’s reasoning.2 Another factor that the Supreme Court has considered when determining whether to overrule a precedent is whether a rule or standard that the prior case establishes for determining the constitutionality of a government action is too difficult for lower federal courts or other interpreters to apply and is thus “unworkable.”3 A third factor the Supreme Court may consider is whether the precedent departs from the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by later decisions,4 or because the precedent is a recent outlier when compared to other decisions.5

The Supreme Court has also indicated that changes in how the Justices and society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule it.6 Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling the decision would result in hardship to individuals, companies, or organizations;7 society as a whole;8 or Legislative,9 Executive,10 or Judicial Branch officers,11 who relied on the decision’s guidance as to which actions and practices comport with the Constitution.12

It is difficult to predict when the Supreme Court will overrule precedent because the Court has not provided an exhaustive list of the factors it uses to determine whether a decision should be overruled, or explained how it weighs them. Although much about how the Supreme Court views precedent remains unclear, the Court’s factors for determining whether to retain or overrule precedent provides the Justices with significant discretion.13 If the Court is unable to distinguish a precedent from the case before it, the Justices generally attempt to strike a delicate balance between maintaining a stable jurisprudence on which parties can rely,14 while preserving sufficient flexibility to correct errors.15

Notes
  1. Some Justices have argued that the Supreme Court’s current stare decisis factors are confusing and should be revised to provide a better roadmap for decisionmaking. See, e.g., Ramos v. Louisiana, No. 18-5924, slip op. at 7–8 (2020) (Kavanaugh, J., concurring in part) (describing the Supreme Court’s jurisprudence on the stare decisis factors as a “muddle” and identifying three stare decisis factors: the merits of the decision, the precedent’s practical consequences, and reliance interests). ↩
  2. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 636–42 (1943) (overruling the Supreme Court’s 3-year-old decision in Minersville School District v. Gobitis, 310 U.S. 586 (1940), which had upheld a state law compelling students to salute the American flag, because of significant disagreements with the Gobitis Court’s analysis of the First Amendment, the importance of national unity, and other issues). ↩
  3. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (overruling Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), because Usery’s rule for when state activities qualified for immunity from congressional regulation under the Commerce Clause had become unworkable, and the lower courts could not apply it consistently). See also Montejo v. Louisiana, 556 U.S. 778, 792 (2009) (“[T]he fact that a decision has proved ‘unworkable’ is a traditional ground for overruling it.”). ↩
  4. United States v. Gaudin, 515 U.S. 506, 521 (1995) (“And we think stare decisis cannot possibly be controlling when . . . the decision in question has been proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court.”). ↩
  5. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 233–34 (1995) (overruling Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990), because it departed from a long line of precedents holding that the Fifth Amendment does not impose a lesser duty on the federal government than the Fourteenth Amendment’s Equal Protection Clause imposes on state governments). See also Michael Stokes Paulsen, Does the Supreme Court’s Current Doctrine of Stare Decisis Require Adherence to the Supreme Court’s Current Doctrine of Stare Decisis?, 86 N.C. L. REV. 1165, 1189 (2008) (“[A]ny fair discussion of the remnant-of-abandoned-doctrine factor of the Court’s current stare decisis analysis must reckon with the seemingly equal but opposite restoration-of-departed-from doctrine counter-factor.”). Occasionally, the Justices disagree over which line of precedent the Court should retain, and which line of precedent it should overrule or ignore. Compare Lawrence v. Texas, 539 U.S. 558, 577–78 (2003) (Kennedy, J., for the majority) (striking down a Texas law that banned private, consensual same-sex sexual activity as violating the Fourteenth Amendment’s Due Process Clause and overruling Bowers v. Hardwick, 478 U.S. 186 (1986), in part because Bowers was inconsistent with subsequent Supreme Court precedents that protected personal autonomy to make decisions related to the family and intimate conduct), with Lawrence, 539 U.S. at 588 (Scalia, J., dissenting) (characterizing the precedents that the majority relied upon as outliers whose legal foundations had been eroded by a 1997 case holding that only “fundamental rights” that are “deeply rooted in [the] Nation’s history and tradition” qualified for enhanced protection under the Due Process Clause) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted)). ↩
  6. Casey, 505 U.S. at 855 (plurality opinion) (discussing the inquiry into whether “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification”). See also, e.g., South Dakota v. Wayfair, No. 17-494, slip op. at 18–19, 23–24 (2018) (overturning two precedents and determining that the Commerce Clause does not restrict states from requiring retailers that lack a physical presence in the state, such as internet retailers, to collect and remit taxes on sales made to state residents). The Wayfair Court noted that the U.S. economy had changed drastically, with a marked increase in the prevalence and power of internet access and concomitant increases in retailers selling goods remotely to consumers. Id. See also West Coast Hotel v. Parrish, 300 U.S. 379, 390, 400 (1937) (overruling Adkins v. Children’s Hosp., 261 U.S. 525 (1923), and stating that “the economic conditions which have supervened” during the Great Depression required reconsideration of the “exercise of the protective power of the state” to institute minimum wage laws). ↩
  7. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved . . . the opposite is true in cases such as the present one involving procedural and evidentiary rules.” (citations omitted)); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) (“[A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.”); Lee, supra note 6, at 691–703, 734. ↩
  8. See, e.g., Dickerson v. United States, 530 U.S. 428, 431–32, 443 (2000) (declining to overrule the Court’s 1966 decision in Miranda v. Arizona because the Miranda decision had “become embedded in routine police practice to the point where the warnings have become part of our national culture”). ↩
  9. Some Justices have argued that legislators may rely on the Supreme Court’s decisions about the constitutionality of certain types of laws. See, e.g., Lawrence, 539 U.S. at 589–90 (Scalia, J., dissenting) (arguing that numerous legislators had relied on the Court’s decision in Bowers v. Hardwick when enacting laws regulating certain sexual behaviors deemed immoral by the governing majority). ↩
  10. See, e.g., Arizona v. Gant, 556 U.S. 332, 358–59 (2009) (Alito, J., dissenting) (arguing that the majority had effectively overruled New York v. Belton, 453 U.S. 454 (1981), and thereby upset law enforcement officers’ reliance on a precedent addressing the permissibility under the Fourth Amendment of searching a vehicle’s occupant after arrest). ↩
  11. Judges often rely on precedent, both explicitly by citing to precedent in their opinions, and implicitly, by accepting principles established by precedent, such as the power of judicial review. See, e.g., Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 805 (2015) (relying on three cases from the early twentieth century in holding that Arizona voters could remove from the state legislature the authority to redraw the boundaries for legislative districts and vest that authority in an independent commission). See also, e.g., Johnson v. United States, 576 U.S. 591, 606 (2015) (striking down part of a federal law as unconstitutional without citing Marbury v. Madison). ↩
  12. See, e.g., Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring in part) (stating that stare decisis “protects the legitimate expectations of those who live under the law”); Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991) (stating that stare decisis “has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response”) See also Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 452 (2010) (“The universe of reliance interests can be usefully (if roughly) divided into four categories: reliance by specific individuals, groups, and organizations; reliance by governments; reliance by courts; and reliance by society at large.”). ↩
  13. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 399 (2006) (statement of then-Judge Alito) (“They have said there has to be a special justification for overruling a precedent. There is a presumption that precedents will be followed. But it is not—the rule of stare decisis is not an inexorable command, and I don’t think anybody would want a rule in the area of constitutional law that . . . said that a constitutional decision, once handed down, can never be overruled.”). ↩
  14. See, e.g., Hilton, 502 U.S. at 202 (“Adherence to precedent promotes stability, predictability, and respect for judicial authority.”); Payne v. Tennessee, 501 U.S. 808, 827 (1991) (“Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”); Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986) (“[T]he important doctrine of stare decisis [is] the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.”). ↩
  15. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (“Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established.”); Smith v. Allwright, 321 U.S. 649, 665 (1944) (“[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.”). ↩

ArtIII.S1.7.3 Retroactivity of Supreme Court Decisions

ArtIII.S1.7.3.1 Overview of Retroactivity of Supreme Court Decisions

Under English common law, from which much of the American judicial system is derived, judicial decisions applied retroactively. The Supreme Court has explained that the common law approach was motivated by the belief that “the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.’”1 Applying judicial decisions retroactively can create practical difficulties, however: regulated parties must rely on the law as they understand it in making decisions and shaping their conduct, but court decisions may change the legal landscape by resolving open legal questions, striking down unconstitutional laws or government actions, or overruling prior judicial decisions. Early American cases generally followed the common law approach and held that Supreme Court decisions applied retroactively.2 By contrast, starting in the 1960s, the Court has at times limited the retroactive application of judicial decisions announcing new rules of law in light of regulated entities’ reliance on the prior rule.3

The Court’s retroactivity jurisprudence distinguishes between criminal and civil cases. The following essays discuss the extent to which the Court has applied its decisions retroactively in criminal4 and civil5 litigation.

Notes
  1. Linkletter v. Walker, 381 U.S. 618, 622–23 (1965) (quoting 1 W. BLACKSTONE, COMMENTARIES 69). ↩
  2. E.g., Robinson v. Neil, 409 U.S. 505, 507 (1973) (Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to limited exceptions.”). ↩
  3. See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 198–99 (1973). ↩
  4. See ArtIII.S1.7.3.2 Retroactivity of Criminal Decisions. ↩
  5. See ArtIII.S1.7.3.3 Retroactivity of Civil Decisions. ↩

ArtIII.S1.7.3.2 Retroactivity of Criminal Decisions

The Supreme Court’s retroactivity jurisprudence distinguishes between criminal and civil cases.1 On the criminal side, there may be further distinctions based on whether a criminal defendant has allegedly engaged in criminal conduct but has not yet been tried, has been convicted at trial and is pursuing a direct appeal, or has exhausted all direct appeals but can still seek collateral relief via a petition for a writ of habeas corpus. The general rule prior to 1965 was that the Court’s constitutional decisions involving criminal law applied retroactively, subject to limited exceptions.2 The Court changed its approach in the 1965 case Linkletter v. Walker, in which it held that, with respect to new constitutional interpretations involving criminal rights, “the Constitution neither prohibits nor requires retrospective effect.”3

In Linkletter and a case from the following year, the Court held that its decisions applied retroactively to all cases in which judgments of conviction were not yet final.4 Later, however, the Court adopted a balancing process that resulted in different degrees of retroactivity in different cases.5 Generally, in cases where the Court declared a rule that was “a clear break with the past,” it denied retroactivity to all defendants, sometimes with the exception of the challenger before the Court.6 By contrast, in certain cases where a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial7 or cases where the Court found that a constitutional doctrine barred the conviction or punishment of someone,8 the Court granted its decisions full retroactivity, even for habeas claimants.

The Court’s retroactivity jurisprudence later distinguished between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, the Court held, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”9 A plurality of the Court first endorsed a new standard for collateral review in Teague v. Lane,10 and a majority of the Court adopted it in Penry v. Lynaugh.11 In contrast to cases on direct appeal, for collateral review in federal courts of state court criminal convictions, the Court held that it generally will not give retroactive effect to “new rules” of constitutional interpretation—that is, rules “not ‘dictated by precedent existing at the time the defendant’s conviction became final.’”12 The Court held that a new rule may apply retroactively in a collateral proceeding “only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”13 As the Teague plurality explained, the Court will apply a new rule in a collateral proceeding only if it places certain kinds of conduct “beyond the power of the criminal law-making authority to prescribe” or constitutes a “new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished.”14

Since Teague, the Court has consistently held that new substantive constitutional rules apply retroactively. The Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits “a certain category of punishment for a class of defendants because of their status or offense.”15 Thus, the Court has held that the first Teague exception is constitutionally based, as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making “the resulting conviction or sentence . . . by definition . . . unlawful.”16 In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, holding that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.17

In contrast, the Court has never invoked the second Teague exception for “watershed” procedural rules to hold that a new rule of criminal procedure must apply retroactively. The Court has explained that procedural rules simply regulate the manner of determining the defendant’s guilt, so if a defendant does not receive the benefit of a new procedural rule, the underlying conviction or sentence may “still be accurate” and the “defendant’s continued confinement may still be lawful” under the Constitution.18 The court has explained that, under the second Teague exception, it is not enough “to say that a new rule is aimed at improving the accuracy of a trial. . . . A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”19 In the 2021 case Edwards v. Vannoy, the Court noted that the Teague Court itself had stated it was “unlikely” that new watershed rules would emerge and, “in the 32 years since Teague, . . . the Court has never found that any new procedural rule actually satisfies that purported exception.”20 The Court thus concluded, “New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.”21

Notes
  1. For discussion of civil cases, see ArtIII.S1.7.3.3 Retroactivity of Civil Decisions. ↩
  2. Robinson v. Neil, 409 U.S. 505, 507 (1973). ↩
  3. 381 U.S. 618, 629 (1965). ↩
  4. Linkletter, 381 U.S. 618; Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966). ↩
  5. Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972). ↩
  6. Desist v. United States, 394 U.S. 244, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335–36 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549–50, 551–52 (1982). ↩
  7. Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328–30 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977). ↩
  8. United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973). ↩
  9. Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007)). ↩
  10. 489 U.S. 288 (1989). ↩
  11. 492 U.S. 302 (1989). ↩
  12. Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if its result “was susceptible to debate among reasonable minds” and if it was not “an illogical or even a grudging application” of the prior decision. Butler v. McKellar, 494 U.S. 407, 412–415 (1990). For additional elaboration on “new law,” see O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998). ↩
  13. Whorton v. Bockting, 549 U.S. 406, 416 (2007). ↩
  14. 489 U.S. at 307, 311–313; see also Butler, 494 U.S. at 415–416. ↩
  15. Welch v. United States, 578 U.S. 120, 132 (2016) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990); see also Schriro v. Summerlin, 542 U.S. 348, 353 (2004); Penry v. Lynaugh, 492 U.S. 302, 330 (1989). ↩
  16. Montgomery v. Louisiana, 577 U.S. 190 (2016) ↩
  17. 577 U.S. 190. ↩
  18. Id. at 201. ↩
  19. Sawyer v. Smith, 497 U.S. 227, 242 (1990) (internal quotations and citations omitted). ↩
  20. 141 S.Ct. 1547, 1557, 1555 (2021). See also id. at 1557 (“The Court has identified only one pre-Teague procedural rule as watershed: the right to counsel recognized in the Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335, 344–345 (1963).”). ↩
  21. Id. at 1560. ↩

ArtIII.S1.7.3.3 Retroactivity of Civil Decisions

As in criminal cases,1 a civil case announcing a new legal rule might in theory apply retroactively in all instances, might apply purely prospectively, or might apply with “selective prospectivity” such that the prevailing party in the case obtains the retroactive benefit of a new rule but no one else does. In some civil cases, the Court has declined to apply new rules retroactively, sometimes even with respect to the prevailing party in the case.2 In Chevron Oil Co. v. Huson, the Court held that the question of retroactivity was to be determined by balancing the equities, considering whether a decision announced a new principle of law, whether retroactive application would advance or hinder the purpose of the rule in question, and whether retroactive application would cause injustice or hardship that could be avoided through purely prospective application.3

In two cases from the 1990s, the Court revealed itself to be deeply divided on whether judicial decisions should, or must, apply retroactively. First, in American Trucking Assn’s, Inc. v. Smith, the Court considered whether to give retroactive effect to a prior case holding unconstitutional the state’s application of a highway tax.4 The Court held that the decision did not apply retroactively. A four-Justice plurality applied the Chevron Oil test to reach that conclusion. Justice Antonin Scalia concurred in the judgment but disagreed with the plurality’s reasoning.5 The following year, in James B. Beam Distilling Co. v. Georgia, the Court considered whether a company could claim a tax refund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products.6 A fractured Court held that the company could seek a refund.7

In the 1993 case Harper v. Virginia Dep’t of Taxation, a bare majority of the Court departed from the Chevron Oil balancing test and announced a new rule to determine the retroactive effect of civil cases.8 The Court held: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”9

Notes
  1. For discussion of criminal cases, see ArtIII.S1.7.3.2 Retroactivity of Criminal Decisions. ↩
  2. E.g., Cipriano v. City of Houma, 395 U.S. 701 (1969); Allen v. State Board of Elections, 393 U.S. 544 (1969); but see Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968). ↩
  3. 404 U.S. 97 (1971). ↩
  4. 496 U.S. 167 (1990). ↩
  5. Id. at 200. Four dissenting Justices would have applied the prior case “only where, under state law, the time for challenging the tax has not expired,” or in timely-filed challenges to the tax where “the decisions are not yet final.” Id. at 224–25. ↩
  6. 501 U.S. 529 (1991). ↩
  7. Two Justices objected to the possibility of “selective prospectivity” noting that, in the earlier decision, the Court had applied the holding to the contesting company, and concluding that once a new rule has been applied retroactively to the litigants in a civil case, considerations of equality and stare decisis compel application to all. Id. at 532–44. Justice Byron White wrote separately to emphasize that it was permissible for the Court to apply its decisions purely prospectively. Id. at 544–47. By contrast, three concurring Justices argued that limiting the retroactive application of judicial decisions, whether through partial or total prospectivity, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies. Id. at 547–49 ↩
  8. 509 U.S. 86 (1993). ↩
  9. Id. at 97; see also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation of that state’s statute of limitations in certain suits); Ryder v. United States, 515 U.S. 177, 184–85 (1995). ↩