Overruling by Ignoring

There’s been a lot of talk lately about SCOTUS’s practice of overruling precedents by first ignoring them and then declaring them bad law. The discussion was sparked by the Court’s recent declaration that it had “abandoned” the Lemon test, with other actual or anticipated examples including Chevron, Casey on stare decisis, and Korematsu. Tendencies to ignore or evade case law might be likened to patterns of gradual precedential erosion, involving cases like Bivens, Flast, and Miranda.

Most of the commentary on overruling-by-ignoring has been critical, but I’m not sure that that negativity is warranted. Like one-last-chance decisions and other forms of judicial gradualism, overruling-by-ignoring has a lot to be said for it. In an essay focused on Teague’s watershed exception, I defended these “fait accompli overrulings”:

[D]oes the Court illegitimately evade stare decisis by declaring that an overruling has already occurred, even though no prior decision had so declared? [T]he stare decisis analysis can be regarded as “disciplining.” Yet that discipline is avoided through overruling as a fait accompli. Surely, one might think, a stare decisis analysis is called for at some point in a precedent’s demise. The “retaining no vitality” line [in Edwards v. Vannoy] could even be viewed as a bad-faith strategy for undermining precedent.

But . . . the situation is more complicated. The problem with fait accompli overrulings is especially severe if we imagine that the earlier ruling was undertaken with the follow-through in mind. But it’s possible, even likely, that the earlier ruling wanted to create a period of precedential tension, rather than knowing precisely how things would be resolved. If experience turned out to favor the later ruling over the earlier one, then the case for overruling would have been made. And if not, then not. The case for good faith grows still stronger if many years—and judicial appointments—lie between the practical and formal overrulings.

We can better see both the appeal and the distinctiveness of fait accompli overrulings by placing them in historical perspective. To a great extent, these rulings harken back to an earlier era, when precedential principles were not made but found. Today, lawyers often assume that a case loses precedential value only if and when a court-as-legislature formally declares it to be repealed or “overruled.” But, at common law, a judicial decision could be set aside for already being odds with the custom or practice of the courts in general. Experience, one might say, can gradually reveal a once venerable precedent’s error. Similar logic may explain the Court’s recourse to “the court of history” in disavowing Korematsu, even though that precedent had never been formally overruled.

All this to say that overruling by fait accompli . . . is at least plausible and possibly even preferable to legislative overruling pursuant to the stare decisis factors. In general, showing that a case has gone by the wayside is harder, calling for greater judicial patience and humility, than simply running through a four-part, one-and-done rubric. So a pattern of erosion or evasion would seem to qualify as a basis for overcoming stare decisis. To harmonize this conclusion with extant doctrine, such a pattern might be treated as a “special factor” within the stare decisis analysis.

Let me add two comments.

First, the propriety of a fait accompli overruling may depend on just what the Court has done to erode or evade. In general, these overrulings are most justifiable when the Court has suggested that the original precedent can be fully discarded—and least justifiable when the Court has insisted that the core of the beleaguered precedent abides. The logic here is simple. Intimations of a precedent’s impending demise provide heightened notice of what is to come, whereas reassurances that the precedent survives could invite new or ongoing reliance.

Second, lower courts do and should play a dynamic role during periods of “precedential tension.” Like other observers, savvy lower-court judges are well aware of cases that seem never to gain traction with the justices. That sort of pattern can even be viewed as a “signal” inviting the precedent’s “narrowing from below.” So, when precedents remain in force but are clouded by doubt, lower courts often make appropriate adjustments. And those experiments can helpfully inform SCOTUS’s ultimate decision to overrule.

The bottom line: if the Court is being too cavalier with precedent, then fait accompli overrulings likely have more to do with the solution than the problem.

Cross-posted from Re's Judicata.