Stare Decisis: Overturning Supreme Court Precedents [No. 86]
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Stare Decisis: Overturning Supreme Court Precedents [No. 86]


The Supreme Court overturns its precedents
rather less often than is thought, and that’s been especially true of the Roberts Court,
although, in the last term, the Court overturned three of its precedents, which was quite rare
for that Court. It did so in the Janus v. AFSCME case when
it overturned the Abood Decision. It did so in the Wayfair case, which involved
the taxation of internet sales by out-of-state vendors, which overturned the Quill case,
and it did so implicitly at least in Trump v. Hawaii, in which the court found that the
infamous Korematsu case was no longer good law. But again, this is an exception where three
cases in one term resulted in overturning prior precedents. In constitutional law, it is generally held
that if a case has been wrongly decided in the past, according to a proper reading of
the constitution, it is subject to being overruled. Circumstances do change, and you may need
to change the law in light of that. Moreover, we may find that a prior precedent
has proven to be unworkable. And a final reason for ignoring stare decisis,
of course, is that the court may have gotten the precedent wrong from a consideration of
simple justice. Accordingly, stare decisis enjoys less currency
in constitutional law than it does in common law. Nevertheless, we do have some landmark cases
in which stare decisis was not upheld, and of course, the most common one is Brown v.
Board of Education in 1954, which overturned Plessy v. Ferguson from 1896, and there it
took almost 60 years for the court to do so. Plessy v. Ferguson upheld the separate, but
equal principle with respect to seating on railroad trains. The Brown v. Board of Education was different,
in that it applied to public schools. Nevertheless, the principles were still the
same, so in that respect, both cases were on all fours, and what you had in Brown v.
Board of Education was, at last, addressing the unfinished business from the Civil War
amendments, mainly writing the wrongs that had arisen under Jim Crow in the south. Continuity of law is important for the integrity
of the law, and for consistency and predictability. Without it, we wouldn’t know whether what
we were doing was legal, or illegal. Stare decisis limits the scope of judicial
review, in the sense that it prohibits judges from imposing their own personal values on
the case at hand, and requires them to decide the case if it is on point with precedents,
according to those precedents. Now, you will still have cases coming before
the court that are cases of first impression. But once that case is decided, it then becomes
a precedent for future similar cases, and that gives us the rule of law. It gives us stability, predictability, and
notice as to what the law is.

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