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Wednesday, July 06, 2022

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often assume that a case loses precedential value only if and when a court-as-legislature formally declares it to be repealed or “overruled.”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.


Posted by Richard M. Re on July 6, 2022 at 11:00 AM | Permalink


overruling by ignoring is the Tendency to bypass or evade case law might be likened to patterns of gradual precedential erosion, involving cases like Bivens, Flast, and Miranda.

Thanks for sharing this article

Posted by: timeless aesthetics | Jul 18, 2022 7:00:41 AM

Snap Relocation

“The Women’s Health Protection Act defines abortion as interstate commerce.”

“Plaintiffs resort to the “absurdity canon,” under which a court can ignore unambiguous language to avoid an absurd result.71 An absurd result is one that is “preposterous” or that “no reasonable person could intend,”72 or that “defies rationality or renders the statute nonsensical and superfluous.”73 A court can find absurdity “where it is quite impossible that Congress could have intended the result and where the alleged absurdity is so clear as to be obvious to most anyone.”74-The Forum-Defendant Rule, the Mischief Rule, and Snap Removal | William & Mary Law Review

“If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment.”- Roe v. Wade, 410 U.S. 113 (1973)”

At no time during your Mother’s pregnancy could your personhood be disestablished, thus abortion is unconstitutional in both State and Federal Law. If the State chooses to ignore the fact that it is not possible for a man and woman to conceive a son or daughter, who is not, in essence, a human person, and deprive innocent human persons of their inherent Right to Life, the securing and protection upon which their inherent Unalienable Right to Liberty and The Pursuit Of Happiness depends, the State must provide evidence demonstrating how it could be possible for a son or daughter of human persons to not be, in essence, a human person. Every reasonable person knows not only that such evidence, affirming the non personhood of a beloved son or daughter residing in their mother’s womb does not exist, and that it would be absurd to even think a beloved son or daughter of a man and woman could possibly be a non person. It would be absurd to also think that a Legislative Body did not intend to deny the personhood of certain beloved sons and daughters by claiming an unconstitutional right to abortion exists.

Our inherent, Unalienable Right to Life, to Liberty, and to The Pursuit Of Happiness is Endowed to every beloved son or daughter of a human person by God. God does not endow places or things with inherent, Unalienable Rights, even though some places and some things may be Sacred.

Roe v. Wade was unconstitutional because every human person has been Created equal in Dignity, while being complementary as a beloved son or daughter, Endowed by their Creator with their inherent Unalienable, Right to Life, Liberty, and The Pursuit of Happiness at the moment they were created and brought into being as a beloved son or daughter.

Posted by: N.D. | Jul 15, 2022 2:35:12 PM

I think the practice of ignoring unpleasantness, shall we say, probably can be shown to have a long history. A tendency toward judicial minimalism can help here. This provides lower courts some discretion since precedents are not overruled in full, even if a full accounting will show the clear trend.

Note Justice Stevens in Planned Parenthood v. Casey:

"The several opinions supporting the judgment in Griswold v. Connecticut, 381 U.S. 479 (1965), are less illuminating than the central holding of the case, which appears to have passed the test of time. The future may also demonstrate that a standard that analyzes both the severity of a regulatory burden and the legitimacy of its justification will provide a fully adequate framework for the review of abortion legislation even if the contours of the standard are not authoritatively articulated in any single opinion."

Scalia famously compared the Lemon Test to a horror movie monster that from time to time rose from the grave. The Supreme Court from time to time formally burying "zombie" precedents can be satisfactory. The concern in the coach prayer case to me are the details.

Lemon was never fully buried because there was a core of truth in it, even if a strong version was rejected. Basically, a practical majority still supported it. I welcome lower courts to have discretion to help the development here. That is a basic value of them with the Supreme Court setting broad limits.

We will see how this works with Dobbs, which totally ignored the years of lower court cases on abortion and related matters pre-Roe [Roe v. Wade conveniently listed them in a footnote; see also, the Supreme Court case U.S. v. Vuitich, with a germane to recent controversies discussion on the meaning of "health"]. There are a range of issues for lower courts to flesh out.

Posted by: Joe | Jul 15, 2022 1:33:55 PM

The precedent that was set in Roe v.Wade was based on an error in Substantive Due Process Law that resulted in an error in Procedural Due Process Law.

There is nothing “uncertain” about the fact, which one can know through both The Catholic Faith, and reason, that every son or daughter of a human person, can only be, in essence, from the moment of their conception, a human person, and since it is not possible for a man and woman to conceive a son or daughter who is not, in essence, a human person, the personhood of that beloved innocent son or daughter cannot be disestablished during any point in time in their mother’s pregnancy.

Being, in essence, a human person does not depend on your mother’s location, or whether or not you are residing inside or outside of your mother’s womb.

The Supreme Court erred in Dobbs v. Jackson, by suggesting that the Constitutionality of the act of abortion, like they once ruled in regards to the act of Slavery, is an issue that should be left
to the States to decide in regards to whether or not our inherent Unalienable Right to Life, to Liberty, and to The Pursuit of Happiness is, in fact, Unalienable for all innocent human persons, regardless of our location, which, according to our Constitution, our inherent Unalienable Rights, being Unalienable Rights, cannot be relinquished, even if we so desire, because they come from God, and not Caesar.

As to the Lemon Law, here are all the steps necessary to be met in order for Congress to “make a Law respecting an establishment of religion”, which we can know through both Faith and reason, have yet to be met as there does not exist a State religion despite the fact that many States and The Federal Government continue to try to interfere with our Religious Liberty.



Save The Children; Save The World🙏💕

Why it is important to have the proper balance of furin, which regulates hepcidin, which regulates iron:


Godspeed! 🙏💕


Posted by: N.D. | Jul 12, 2022 2:33:14 PM

From the moment of our creation, at our conception, our personhood as we reside in our mother’s womb cannot be disestablished. You have been you, since the moment of your conception, and I have been I, since the moment of my conception, and nothing can change that self-evident truth that can be known through both Faith and reason regarding the beginning of our personhood. Every human person has been created equal in Dignity, while being complementary as a beloved son or daughter, endowed by God with the capital G, at the moment of our creation , with our inherent, unalienable Right to Life, the securing and protection upon which our inherent unalienable Right to Liberty and The Pursuit of Happiness depends

Posted by: N.D. | Jul 8, 2022 5:36:47 PM

Important issue indeed.

But, every case has its own unique legal and factual configuration. Typically, it is very hard, to find, both cases, having totally identical legal and factual configuration. So, is this regard, precedents, don't mean too much ( or much less than what we may think or attribute).

So, in that case of that coach for example (Kennedy) we have an issue with pretty unique factual configuration:

After the game is over, a public employee, took or exercised a pray in the field. He wasn't teaching, influencing no one, alone, in a brief period of private time. Without any student around or besides him etc....

The court stated, that such case, is different from other previous law cases or precedents (beyond different approach taken after "Lemon").

I quote Justice Alito:

" The expression at issue in this case is unlike that in any of our prior cases involving free speech....."

And indeed, Justice Thomas has stated that yet ahead, other issues not yet been solved here, and should be solved in time. I quote:

" I write separately to emphasize that the court's opinion does not resolve tow issues related to Kennedy's free exercise claim..."


Posted by: El Roam | Jul 6, 2022 1:53:14 PM

I'm not sure that it's ever appropriate for a court to deliberately "create a period of precedential tension." Creating wobbliness and uncertainty in doctrines that you lack the will or votes to overrule today seems like the sort of thing politicians do to their opponents, not the sort of thing courts ought to be doing to disfavored decisions by their predecessors. I suppose my objection is more to the ethics than the instability it creates; if the Court said, "to experiment with what it would be like to overrule Chevron, we won't grant cert for two years if a circuit chooses not to follow it," that would be much more destabilizing, but it would at least be above-board, and I could more readily accept it as a good-faith and even productive experiment, as opposed to your idea of silently declining to apply Chevron in three Supreme Court agency cases a year as some sort of constructive "experience" that might reveal its error. It would also create instability of the familiar sort that circuit splits the Court hasn't resolved yet create, while "periods of precedential tension" don't generate percolation on the merits, but divisions between courts that think you should follow a precedent that hasn't been formally overruled (as the Court always says lower courts should, with the interesting exception of Herrera) and courts willing to take a risk of reversal, and the knowledge that if a case does reach the Court the rules everyone applied below might or might not go out the window. The lower courts that do take a risk of reversal rarely have anything very interesting to say about why they're taking that risk, both because they tend to be extremely ideologically committed to the overruling cause, as they have to be to take the chance, and because they have to say all sorts of evasive and disingenuous things about why what they're doing is lawful, unless they just ignore the precedent in question. Like the Court's ignoring a precedent, that doesn't provide some valuable experience and merely shows it's possible not to apply the precedent if you don't want to (e.g., we "learn" in Empire Health that you can interpret a very difficult statute and purport to arrive at an answer without deferring to the agency, as courts do all the time when there is no agency interpretation to defer to). Of course that statement is in some tension with my concession that an above-board experiment might be useful, but if a large circuit never applied Chevron in an immigration case or any other, as opposed to just ignoring it in a few, we would learn some things about the predictability Chevron does or doesn't create, whether as claimed Chevron takes some ideological valence out of judging and makes decisions across circuits more uniform, and so on. Nothing much by contrast is learned from the "period of tension" where lower courts generally remain locked in and the Court does what it wants a few times a year.

Posted by: Asher Steinberg | Jul 6, 2022 1:52:23 PM

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