Introduction
On June 24th, 2022, the United States Supreme Court used its ruling in Dobbs v. Jackson Women's Health Organization 1 to declare that the Constitution does not include or recognize a right to abortion. Along the way, the Court overruled Roe v. Wade 2 and Planned Parenthood of Southeastern Pa. v. Casey, 3 two cases which scholars and judges, including some of the Justices who voted to overrule them in Dobbs, 4 regarded as having significant precedential weight. 5 Overruling previously decided cases is, of course, nothing new for the Supreme Court. 6 But what attracts our attention to Dobbs is not just that it overruled Roe and Casey, but what it said about the decisions that it overruled.
More than two years after Dobbs, it is safe to say that the decision divided the country and unleashed a firestorm of criticism. A Pew Research Center survey conducted in July 2022 found that 57% of adults disagreed with the decision, with 43% reporting strong disagreement. 7 In June 2023, a Gallup survey found that “A record-high 69% (of respondents) say abortion should generally be legal in the first three months of pregnancy,” and “A 61% majority of Americans think overturning Roe v. Wade, thus ending constitutional protection for abortion rights and returning the matter to the states, was a ‘bad thing.’” 8
Scholars joined the chorus of Dobbs critics, 9 pointing out the danger of overturning long-established precedent and undermining the Court's doctrine of stare decisis. 10 They called attention not just to the fact of overruling precedent but also to what they saw as the unusually strident criticism that Justice Samuel Alito directed at Roe and Casey in his Dobbs majority opinion. 11 Explaining why Roe should be confined to the dustbin of history, Alito wrote: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” 12 This kind of language, we believe, undermines the public's confidence in the Court and its respect for the Justices who sat on the bench when Roe was decided.
But Alito was not done. Later in his opinion, he again said that “Roe was also egregiously wrong” and added that it was “deeply damaging.” 13 Adding insult to injury, Alito argued that “Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” 14 He alleged that the Justices who decided Roe v. Wade “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” 15
Alito claimed that Roe's analysis of the history of abortion and abortion regulation was “irrelevant” 16 and “plainly incorrect.” 17 He called the legal reasoning contained in Roe's majority opinion “unprincipled” 18 and said it offered an “unfocused analysis.” 19 He called its treatment of the Constitution “remarkably loose” 20 and “hard to defend.” 21
Alito went on to say that Roe “enflamed debate and deepened division” 22 and “cannot be allowed to stand.” 23 He said that Roe demonstrated a striking “failure” to pay attention to important information, 24 and an “erroneous understanding” of common law. 25 Alito highlighted Roe's “damaging consequences” 26 and how it wrought “turmoil.” 27 He claimed it was “on [a] collision course with the Constitution from the day it was decided.” 28
As Alito noted, “Those on the losing side (in Roe and Casey) — those who sought to advance the State's interest in fetal life — could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” 29 He heaped scorn on Roe and criticized what he called “the scheme Roe produced” for looking like “legislation” and providing “the sort of explanation that might be expected from a legislative body.” 30 It is time, Alito concluded, “to heed the Constitution and return the issue of abortion to the people's elected representatives.” 31
Our interest in this article is not to contest what the Court did in Dobbs but to attend instead to how it did it or, more precisely, to what we call “the rhetoric of overruling” that Alito employed. We put Alito's rhetoric in historical context and ask how it compares to the rhetoric used throughout American history in other cases where the Supreme Court overruled precedent. We ask: Was Dobbs unprecedented in its overruling rhetoric? This article seeks to answer this question, and, in doing so, to create a more complete understanding of the rhetorical styles of Supreme Court cases that overrule precedent.
Part I offers a general overview of the literature on precedent and stare decisis. Precedent here refers to previous cases which have been decided by the Court, while stare decisis refers to the doctrine which suggests Justices should adhere to precedent. We examine what scholars have said about precedent's importance, how stare decisis is applied in constitutional and statutory cases, and how it is used as a tool by Justices to advance their own ideological agendas. While some scholars argue that stare decisis effectively constrains what Justices decide, much of the literature argues that in constitutional cases it is inconsistently applied 32 and used in an unprincipled fashion. 33 In statutory interpretation cases, it is often argued to be a similarly “inconsistent and incoherent” constraint. 34
In Part II, we discuss the history of the Supreme Court's rhetoric of overruling. We divide the Court's overruling cases into four periods, defined by the rhetorical style used during those times. We label those periods Founding, Developing, Escalating, and Pre-Dobbs. We trace a gradual change in the form and intensity of criticism directed at cases the Court overrules, culminating in Dobbs. We conclude by describing the consequences and repercussions of our findings for the legitimacy of the Supreme Court.
I. Stare Decisis as a Guide to Supreme Court Decision Making
Stare decisis, or “to stand by things decided,” is generally acknowledged to be an important norm in the Supreme Court. 35 This norm requires the Court to adhere to the principles, rules, or standards of its previous decisions when ruling on a case with similar facts. 36 Epstein and Knight suggest that precedent constrains Justices' decisions. 37 They note that attorneys often cite precedent in briefs and arguments because they believe it matters, and they report that individual Justices often refer to precedent in their private arguments after a case is briefed and argued. The purported values of stare decisis include fostering stability, predictability, uniformity of the law, certainty, continuity, convenience, permanence in jurisprudence, legitimacy (both decisional and institutional), efficiency, justice, equality, and fairness. 38
Despite these values, the Supreme Court occasionally departs from stare decisis. Christopher Banks argues that there are 5 factors that Justices generally consider when determining whether to do so: the type of case, reliance interests, degree of unanimity in the court's previous opinion, a precedent's age, and the special justification offered by lawyers for overruling or distinguishing precedent. 39 Whether the precedent is statutory or constitutional is also significant. 40
Reliance refers to whether there are substantial interests, such as property or vested commercial interests in a case. Decisional unanimity, or lack thereof, also influences the force of the precedent, with a non-unanimous or divided opinion having less force than a unanimous one. The age of the precedent means that more weight or deference will typically be afforded to a case if it is a longstanding authoritative rule. 41 But Banks argues that other considerations such as whether a prior decision was “wrongly decided,” “badly reasoned,” “unworkable,” or “confusing” in light of changed circumstances, or whether there is some intervening legal development between a previous case and one which overrules it, do not play much of a role in explaining judicial overruling of precedent. 42
Like Banks, Amy Padden says stare decisis is “not an inexorable command.” 43 But contrary to Banks, she claims that precedent can be overruled in light of new developments in law, when the prior case is found to be unworkable, or if the “underlying reasoning is outdated or inconsistent with contemporary values.” 44 This means that a case will be overruled if the Justices believe it would have been treated differently if it were decided for the first time in the present moment.
Other scholars think that Supreme Court Justices use stare decisis as a smoke screen to protect decisions they don't want to overrule for other reasons. For example, Frederick Schauer suggests that there really is no stare decisis norm on the Court. 45 He claims that it is merely a rhetorical weapon used against opponents in cases that Justices don't want to see overturned. 46
In fact, as Saul Brenner and Harold Spaeth report, stare decisis is rarely used by Justices in the way other legal doctrines are used. 47 They claim that Justices deploy a kind of personal stare decisis. They adhere to their own previous holdings, rather than being bound by institutional stare decisis or precedent. Political ideology, Brenner and Spaeth argue, not precedent, is the best predictor of a Supreme Court Justice's behavior. 48
Jeffrey Segal and Harold Spaeth, examining a series of cases decided between 1953 and 1995, found that Justices' decisions conform to their own ideological preferences over 90% of the time. 49 Only 9.2% of the time did a Justice adhere to precedent when it conflicted with those preferences. Brenner and Spaeth's results also indicate that “Justices' personal policy preferences substantially explain their behavior” and that 97% of votes in nonunanimous decisions were consistent with the Justices' political ideology. 50
Spriggs and Hansford, like Brenner and Spaeth, argue that “Justices are motivated by their policy preferences.” 51 But when deciding whether to overrule a previously decided case they are “also constrained by both informal norms and specific precedent characteristics.” 52 They suggest “that legal norms exert a stronger substantive influence on the overruling of precedent than the Justices' policy preferences.” 53 In “Supreme Court Reversals on Constitutional Issues,” Charlotte C. Bernhardt analyzed 35 overruling cases and concluded that Justices do not agree upon a single doctrine of what she called “constitutional stare decisis.” 54 Instead, the Court's treatment of constitutional cases depends upon its current composition.
George Costello examines the rationales used by the Court when overruling constitutional cases. 55 He concludes that the reasoning used in overruling constitutional precedent was neither consistent nor coherent. 56 Brendan J. Murrill analyzes 141 cases that overruled constitutional precedent and argues that Justices attempt to strike a balance between maintaining jurisprudential stability and being flexible enough to correct errors. 57 Other scholars call constitutional stare decisis unprincipled and unconstrained, 58 inconsistent, 59 and note that Justices serving on the same Court often have different views about constitutional stare decisis. 60
Following this line of argument, Charles J. Cooper calls constitutional stare decisis “a doctrine of convenience” that is inherently subjective and manipulable. 61 Ilya Somin agrees with Cooper and argues that liberal and conservative Justices overrule constitutional precedents when they see them as wrong. “Both,” he says, “wave the stare decisis flag whenever precedents they like are imperiled.” 62
Unlike the literature discussed thus far, some scholarship on stare decisis is clearly normative. For example, as far back as 1889, when D.H. Chamberlain analyzed the Legal Tender Cases, 63 he aimed to answer the question of “whether the doctrine ought to be, or is, less strictly applied to decisions of constitutional questions than to questions of mere private right.” 64 Chamberlain concluded that only decisions “clearly wrong in principle or on the facts” should be overruled. 65
Scholars who take a normative perspective on precedent generally agree that Justices should overrule a precedent if, and only if, it is more than just “wrong.” 66 Bernhardt posits that constitutional overruling is only justified when it is necessary to adapt the law to changing social and economic conditions. 67 Some scholars offer a complex matrix that they say Justices must consider if they want to overrule a constitutional precedent. 68
The literature on statutory overruling is similar to the literature on overruling in constitutional cases in its attempts to draw general conclusions about how statutory stare decisis functions. 69 Various studies analyze the factors the Supreme Court considers 70 or make normative arguments about how stare decisis should work in the statutory context. 71 For example, Lawrence Marshall finds that the justifications offered by Justices for overruling in general are ambiguous, but stare decisis in statutory interpretation does influence some members of the Court. 72 Yet Jordan Connors finds that the application of stare decisis in statutory cases is at best inconsistent. 73
William Eskridge's 1988 article, “Overruling Statutory Precedents,” provides the most in-depth analysis of the factors the Court considers when overruling precedents in cases about the meaning of statutes. 74 Eskridge says the Court generally accords a “super-strong presumption” of validity to precedent in those cases. 75 He identifies three exceptions to this super-strong presumption.
What he calls the “proceduralist exception” asks whether the precedent is procedurally flawed because it was decided after inadequate deliberation. The second exception occurs when Congress leaves it to the Court to determine the specifics of an ambiguous general policy. In those cases, the courts use a common law process to fashion specific rules and change or rescind rules that prove unworkable or inconsistent with the general policy. Finally, what Eskridge calls the “reliance exception” weighs how private parties have shaped their behavior in response to a precedent and whether Congress itself has relied on that precedent.
If a Justice recognizes one of those exceptions to the super-strong presumption, Eskridge says they will then undertake three further inquiries to decide whether to overrule a precedent:
(1) Informed by criticisms of the precedent and its reasoning by commentators, lower court judges, and the Court's own opinions, can the Court now say with confidence that the precedent was wrongly decided? (2) Is the precedent not just wrong, but also pernicious, detracting from overall national policies? (3) Do the policy problems engendered by the rule outweigh the potential unfairness to private persons and create uncertainty about other rules that will occur if the precedent is overturned? 76
Eskridge finds that the presumptions and exceptions to stare decisis in statutory interpretation cases are used in what he calls a “game of judicial hide-and-go-seek.” 77 He argues that Justices often invoke the super-strong presumption when they don't want to overrule a precedent and then ignore it or invoke one of three exceptions when they want to do so. In another article, Eskridge argues that the Court should adopt an absolute rule of stare decisis in statutory interpretation cases. Doing so, he says, would encourage legislatures to update statutes constantly. 78
The literature discussed so far provides insights into how and when the Supreme Court overrules or should overrule precedent, but does not address the rhetoric of overruling. 79 Only a few studies have focused on what Justices say when they overrule precedent and how they characterize the decisions they reverse. For example, Pintip Dunn analyzes overruled constitutional cases from 1971 to 2002 and argues that the rhetoric, rather than the reasoning, used to overrule a case is the Court's most persuasive tool. 80 Justices, he says, generally use language that is “nondescript enough to avoid the alarm bells set off when there is a departure from precedent.” 81 The Court seeks to speak in ways that “sneak the act of overruling by with minimal damage to its legitimacy.” 82
Dunn also found that justices often use the passive voice to downplay the Court's responsibility for overruling precedent and to imply that they are merely observers, rather than makers, of the law. Justices use verbs like “bound” and “require,” to suggest that “their hands are tied.” 83 They structure their sentences to suggest that they merely adapt the law to new facts. They do so to try to convince their readers that departing from precedent is not unprecedented or that some earlier case has already implicitly overruled the case now actually being overruled. 84
Finally, Dunn argues that when the Court overrules a precedent it frequently acts as if doing so is “universally accepted” and so “obvious that its utterance is not even necessary.” 85 Alternatively, sometimes Justices say that they now know more than their predecessors or that important details were overlooked when the case they want to overrule was first decided.
Another study, this one by Andrew Jacobs, analyzed the development of overruling rhetoric from the 19th century to the late 20th century. 86 Jacobs found that “the Court's overruling rhetoric of the late twentieth century has fundamentally changed,” resulting in what he calls a “postmodern rhetorical performance.” 87 Jacobs describes this “postmodern rhetorical performance” as characterized by an emphasis on “the agency of particular Justices, fragmented discourse, the collapse of larger narratives within substantive areas of the law, and the absence of the nineteenth century's grand narrative of scientism.” 88 This performance, he argues, “utterly fails to produce the effect of necessity…and creates a crisis of legitimation.” 89
Our research extends the work of Dunn and Jacobs and asks whether Alito's rhetoric of overruling in Dobbs was a departure from, or an extension of, the rhetoric used when the Supreme Court previously overruled precedent. We build on Dunn by examining both continuity and change in the rhetoric of overruling. We follow Jacobs in asking whether what Alito did and said in Dobbs contributes to a legitimation problem for the Supreme Court.
II. The History of Overruling Rhetoric in the Supreme Court
Our study of the rhetoric of overruling focuses on the 235 instances in which the Supreme Court overruled precedent from 1810 to 2022. We identified shifts in that rhetoric corresponding to four distinct periods: 1810 to 1940, 1940 to the 1960s, the 1960s to the early 2000s, and the early 2000s to Dobbs in 2022.
To begin the research process, we used the Library of Congress' list of Supreme Court cases which overruled precedent. 90 We thoroughly examined each case on the list and compiled all mentions of the overruled case(s), with particular attention given to the rhetoric used when Justices discussed the overturned case(s) and the Court or Justices who decided the prior case(s). 91 Along with this overruling rhetoric, we examined whether the overruled case involved a constitutional, statutory, or procedural issue, and whether the precedent was expressly overruled. 92
With respect to the rhetoric of overruling, we analyzed both how much and what was said about the prior case. 93 We sought to determine shifts in the pattern of overruling rhetoric and the years and cases that signaled changes in those patterns. We identified four distinct periods in the Supreme Court's overruling history.
We call the first period, lasting from 1810 to 1940, the Founding Period. Over the course of 130 years, the Court developed the foundations of its overruling rhetoric. We call the second period, lasting from 1940 to 1963, the Developing Period. During this period the Court explicitly introduced the doctrine of stare decisis and further developed the conventions of overruling rhetoric. During the third period (the Escalating Period), which lasted from 1963 to 2003, the frequency and intensity of overruling rhetoric increased significantly, and the Court introduced many new stare decisis considerations. The fourth period, the Pre-Dobbs Period, lasted from 2003 to 2022. During this period the Court established the rhetorical conditions that enabled Justice Alito's treatment of precedent in Dobbs and began developing a series of tests to determine when it would be appropriate to overrule precedent. These tests comprise what we call a “jurisprudence of overruling.”
We discuss cases those exemplify the characteristics of overruling rhetoric in each period. We focus on cases that mark the start of a new period of overruling rhetoric, that introduced new overruling rhetoric, or contained notably critical rhetoric in each time period.
Founding Period: 1810–1940
The first Supreme Court case in which a precedent was overruled, Hudson v. Guestlier, was decided in 1810. 94 From then until 1940, the Court overruled precedent in only 48 cases. Of those cases, 41.7% involved direct overruling of precedent, 95 and the Court generally said relatively little about the case it was overruling. 96
In Hudson v. Guestlier, the Court overruled Rose v. Himely, 97 a two-year old precedent concerning maritime jurisdiction. In contrast to Alito's Dobbs opinion, the Court said very little about why that case was overruled. Rose v. Himely held that a French tribunal did not have jurisdiction to order the seizure of a ship since it was more than two leagues, or about 6.9 miles, offshore. The Court reversed the judgment since the vessel was actually within one league of the coast. 98 It simply characterized Rose v. Himely as “differing factually.” 99
However, over the next one hundred and thirty years, the Court employed more developed and distinctive rhetoric when it overruled precedent. Words and phrases that were most commonly used to characterize overruled cases in this period include: “inconsistent,” as in “we can find no justification for [the overruled case's] exception which is inconsistent;” 100 “unsound,” as in “we feel constrained to pronounce [the case being overruled] ... essentially unsound;” 101 “untenable,” as in “we are compelled to declare [the overruled case] untenable;” 102 not harmonious, as in “[the overruled] cases are out of harmony with the general current of the decisions of this court;” 103 “erroneous,” as in “if we follow [the overruled case], we follow an erroneous decision;” 104 “confusing,” as in “disturbance and confusion that must inevitably flow from an adherence to [the principles of the overruled case];” 105 “doubt,” as in “[d]oubt was repeatedly expressed as to the [overruled case's] correctness;” 106 “irreconcilable,” as in “the judgment in the instant case cannot be reconciled with the decision in [the overruled case];” 107 and “departure” (from principle/precedent) as in “the decision in the [overruled] case was a departure from the true application of the principles [in this area of jurisprudence].” 108
The Supreme Court first used the word “overrule” explicitly in Knox v. Lee (1871), 109 which overruled Hepburn v. Griswold (1869). 110 Knox found the Legal Tender Act to be constitutional, allowing paper treasury notes to be used as legal tender. The Knox majority observed that “it is no unprecedented thing in courts of last resort…to overrule decisions previously made” but acknowledged that overruling should not be done “inconsiderately.” 111 In later constitutional cases such as Leloup v. Port of Mobile (1888), 112 holding that a state license tax on a telegraph company violates the commerce clause, and Garland v. Washington (1914), 113 holding that due process does not require the state to adopt a particular form of criminal trial procedure as long as the accused has sufficient notice and opportunity to defend himself, the Court also argued that what it called “great caution” should be used when changing “certain dicta and decisions.” 114 It emphasized its “reluctance to overrule former decisions of this court.” 115
Toward the very end of what we call the Founding Period, a new development in overruling rhetoric occurred in Erie Railroad v. Tompkins (1938), a constitutional case holding that in diversity jurisdiction cases courts should apply substantive state law and federal procedural law unless there is a conflict between substantive state and federal law. 116 The Erie Railroad majority characterized Swift v. Tyson, 117 the case it overruled, as “oft-challenged.” 118 The Court said, “Doubt was repeatedly expressed as to the correctness [of Swift's statutory construction].” 119 It noted that “criticism of [Swift's] doctrine became widespread after the decision,” 120 and that the doctrine “revealed its defects, political and social and the benefits expected to flow from the rule did not accrue;” 121 Swift, the Court said, “prevented uniformity,” 122 “developed a new well of uncertainties,” 123 and produced “mischievous results.” 124 The Court criticized Swift v. Tyson's judge-made rule 125 and mentioned, for the first time, outside criticism, not only from Justices in previous cases but from legal scholars, as a relevant factor in overruling a past decision. 126
A year later, in O'Malley v. Woodrough (1939) 127 which decided that a judge's gross-income could be taxed if they were appointed after the Revenue Act of 1932, the Court insisted that Miles v. Graham, 128 which held that the Revenue Act of 1918 did not allow taxing the compensation of a judge appointed after its enactment, “cannot survive.” 128 This was the first use of this phrase to justify overruling precedent, but it would soon be used often. 129
The Founding Period slowly developed a set of rhetorical conventions as the Court explored how and when to overrule. The Court was generally respectful, even as it overruled a prior case, and often pointed to legal and social developments that occurred after the overruled case had been decided and which required it to change course. 130 It tried to stress that those developments were unknowable at the time the previous Court made its decision. It characterized the overruling decision as a necessary and unavoidable update of the Court's precedent rather than a function of the previous Court's defective or inadequate reasoning. This “overruling with regret” allowed the Court to preserve its own reputation and that of the previous Court whose decision it was reversing. 131
Developing Period: 1940–1963
In the Developing period from 1940 to 1963, the Court overruled 43 cases, 21.95% of those directly, 132 and notably said more about each overruled case, mentioning it an average of 3.58 times per decision. 133 The Supreme Court's decision in Helvering v. Hallock (1940), 134 overruling Becker v. St. Louis Union Trust Co. (1935) 135 and Helvering v. St. Louis Union Trust Co. (1935), 136 marked the start of the Developing Period in the history of the Court's overruling rhetoric. Helvering referred explicitly to stare decisis, describing it as “an important social policy” that preserved an “element of continuity in law” rooted in the “need to satisfy reasonable expectations.” 137 But the Court added that “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.” 138 Helvering was the first time that the Court explicitly acknowledged that it could, and sometimes should, correct itself. 139 After Helvering, the Court mentioned stare decisis more frequently as a factor to consider in deciding whether to overrule prior decisions. 140
Tigner v. Texas (1940), 141 a constitutional case that upheld a Texas statute “punishing conspiracies in restraint of trade but expressly inapplicable to ‘agricultural products or livestock while in the hands of the producer or raiser’” against an equal protection challenge, 142 overruled Connolly v. Union Sewer Pipe Co. (1902) 143 and introduced three oft-used rhetorical terms into the lexicon of overruling decisions: “vitality,” as in “time and circumstances had drained [the overruled] case of vitality;” 144 “erosion,” as in the “[overruled] case has been worn away by the erosion of time;” 145 and whether or not a case is “controlling” (i.e., an authoritative precedent). 146 Oklahoma Tax Commission v. Texas Co (1949), 147 which held that, in the absence of Congressional legislation immunizing lessees, Oklahoma could tax petroleum produced from lessees of indigenous land, overruled Oklahoma ex rel. Okla. Tax Comm'n v. Barnsdall Refineries (1936), 148 Large Oil Co. v. Howard (1919), 149 Howard v. Gipsy Oil Co. (1918), 150 Indian Territory Illuminating Oil Co. v. Oklahoma (1916), 151 and Choctaw, Oklahoma & Gulf Railroad v. Harrison (1914). 152 Oklahoma Tax Commission introduced two other terms that would soon become standard in overruling rhetoric: “undermined,” as in “[the court is deciding whether] the cases have been so undermined by later decisions…that they should now be overruled;” 153 and “foundation,” as in “it is strongly urged that our later decisions…have stricken the foundation from beneath the [cases being overruled]... so that the latter no longer can stand in reason and consistency with the former.” 154 In overruling cases, the Court began to justify its decision by arguing that subsequent cases “undermined” the basis or “stricken[ed] the foundation” of the case being overruled.
In United States v. Darby (1941), 155 a constitutional case interpreting the Commerce Clause, 156 the Justices described the overruled Hammer v. Dagenhart (1918), 157 which held that “production was not commerce, and thus outside the power of Congress to regulate. And the regulation of production was reserved by the Tenth Amendment to the states,” as having been decided by a “bare majority,” 158 as having created novel and unsupported distinctions that have “long since [been] abandoned…[and] ceased to have force,” 159 as a “departure” 160 from prevailing principles/interpretations, and as having “long since…exhausted” its vitality as precedent. 161
Such overtly critical characterizations of prior cases were also apparent in two cases interpreting tax law: Commissioner of Internal Revenue v. Estate of Church (1949) 162 and James v. United States (1961). 163 Internal Revenue characterized May v. Heiner (1930), 164 the case it overruled, eleven times, and James characterized the Commissioner of Internal Revenue v. Wilcox (1946) 165 nine times.
Internal Revenue notably described Heiner as “no longer be[ing] accepted as correct.” 166 The Court argued that it was “not an overstatement to say that this Court's [previous controlling] opinion and holding treated May v. Heiner with scant respect.” 167 That opinion “demolished the only reasoning ever advanced to support the May v. Heiner holding.” 168 It concluded that Heiner was undeserving of “the sanctuary of stare decisis.” 169
James gave similar treatment to Wilcox. The Court characterized the case it overruled as “thoroughly devitalized,” 170 “effectively vitiated by this Court's decision in [a controlling precedent],” 171 and “repudiated” 172 in its reasoning. “Wilcox,” the Court said, “was wrongly decided.” 173 It concluded that “we should now correct the error and the confusion resulting from it.” 174
The Developing and Founding Period had very similar numbers of overruled cases and characterizations of those cases: 48 cases with 144 characterizations vs. 43 cases with 154 characterizations respectively. 175 From 1940 to 1963, the Court introduced new and more critical language to describe the cases it overruled. However, compared to the Founding Period, the overrulings in the second period were more indirect. In the Developing Period, the percentage of cases in which a precedent was explicitly overruled dropped to half of what it was in the previous 130 years. 176
Escalating Period: 1963–2003
In what we call the Escalating Period from 1963 to 2003, the Supreme Court overruled precedent on a more regular basis. In this 40-year period the Court overruled precedent in 121 cases and did so explicitly and directly in 57.9% of its overruling decisions. 177 The Court also had more to say about the cases it overruled; it characterized the overruled cases 7.07 times on average. 178 Additionally, the Court mentions stare decisis more in this period than in the previous one. 179 The Supreme Court's 1963 Gideon v. Wainwright decision marked the start of the Escalating Period. 180
Gideon overruled Betts v. Brady, a case that had upheld the denial of counsel to an indigent defendant. 181 Gideon reversed this decision by saying that the constitutional right to counsel applies to all defendants in state court proceedings. Justice Hugo Black, writing for a unanimous Court, explained that “Since 1942, when Betts v. Brady, 316 U.S. 455, was decided by a divided Court, the problem of a defendant's federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts.” 182 Black argued that “in deciding as it did…the Court in Betts v. Brady made an abrupt break with its own well-considered precedents” 183 and contended that “The Court in Betts v. Brady departed from the sound wisdom upon which the Court's holding in Powell v. Alabama rested.” 184 Finally, Justice Black stated that “Twenty-two States, as friends of the Court, argue that Betts was ‘an anachronism when handed down’ and that it should now be overruled. We agree.” 185 The Court majority directly overruled Betts by saying, “We conclude that Betts v. Brady should be overruled.” 186
In Moragne v. States Marine Lines (1970), 187 a statutory interpretation case discussing remedies for wrongful deaths in maritime law, the Court displayed the same disdain for the case it overruled as Black displayed in Gideon. Justice John Harlan's majority opinion was scathing in its criticism of The Harrisburg, 188 a case decided 84 years earlier. 189 In The Harrisburg, the Supreme Court ruled that a plaintiff could not pursue legal action for maritime wrongful deaths when such an action conflicted with the local wrongful death statutes. 190 Moragne ruled that legal action in such a situation is permitted. As Justice Harlan put it: “On fresh consideration of the entire subject, we have concluded that the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg, and that the latter decision, somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed.” 191
Harlan goes on to say that developments since The Harrisburg decision have led to “the wholesale abandonment of the rule in most of areas where it once held sway, quite evidently prompted by the same sense of the rule's injustice that generated so much criticism of its original promulgation.” 192 Harlan explained that:
We do not regard the rule of The Harrisburg as a closely arguable proposition–it rested on a most dubious foundation when announced, has become an increasingly unjustifiable anomaly as the law over the years has left it behind, and, in conjunction with its corollary, The Tungus, has produced litigation spawning confusion in an area that should be easily susceptible of more workable solutions. The rule has had a long opportunity to prove its acceptability, and instead has suffered universal criticism and wide repudiation. 193
Harlan also noted that “the rule of The Harrisburg, […] had been rejected by ‘[e]very country of western Europe.’” 194 And in language of the kind Alito later used in Dobbs, he labeled it “‘a disgrace to a civilized people’” 195 and directly overruled it by saying that “[w]e accordingly overrule The Harrisburg.” 196
United States v. Reliable Transfer Co. (1975) 197 offers another example of the increasingly harsh and critical language that characterized late 20 198 century's overruling decisions. Reliable Transfer ruled that in admiralty cases involving collisions all parties should be held liable in accordance with their comparative degrees of fault for the events which transpired. 199 This case overruled The Schooner Catherine v. Dickinson (1854), which previously held that in collision cases liability should be split evenly among the parties involved. 200
Writing for a unanimous Court, Justice Potter Stewart explained that “It was true at the time of The Catharine that the divided damages rule was well entrenched in English law. The rule was an ancient form of rough justice, a means of apportioning damages where it was difficult to measure which party was more at fault” 201 and that “The courts of every major maritime nation except ours have long since abandoned that rule.” 202 Justice Stewart also referred to, and adopted, the rhetoric used by the lower federal courts, stating that, “While the lower federal courts originally adhered to the divided damages rule, they have more recently followed it only grudgingly, terming it ‘unfair,’ ‘illogical,’ ‘arbitrary,’ ‘archaic and frequently unjust.’” 203 Stewart argued that the Dickinson decision “is unnecessarily crude and inequitable in a case like this one where an allocation of disparate proportional fault has been made” 204 and that “There can be no question that subsequent history and experience have conspicuously eroded the rule's foundations.” 205
In a burst of particularly critical rhetoric, Stewart contended that:
The rule of divided damages in admiralty has continued to prevail in this country by sheer inertia rather than by reason of any intrinsic merit. The reasons that originally led to the Court's adoption of the rule have long since disappeared. The rule has been repeatedly criticized by experienced federal judges who have correctly pointed out that the result it works has too often been precisely the opposite of what the Court sought to achieve in The Schooner Catharine – the ‘just and equitable’ allocation of damages. 206
Thirteen years later, in 1988, the Court overruled Ettelson v. Metropolitan Life Insurance Co 207 and Enelow v. New York Life Insurance Co (1935) 208 in Gulfstream Aerospace Corp. v. Mayacamas Corp. (1988), 209 a statutory interpretation case. Ettelson and Enelow previously held that a decision staying, or dismissing, a case on equitable grounds was immediately appealable. 210 However, Gulfstream determined that an immediate appeal is not permitted following a district court's decision when a similar suit is pending in state court. 211 It was decided unanimously, with Justice Thurgood Marshall writing for the Court.
Marshall's opinion picked up the critical tone Stewart used in Reliable Transfer. Marshall wrote, “This Court long has understood that the Enelow-Ettelson rule is deficient in utility and sense.” 212 He argued that,
A half century's experience has persuaded us, as it has persuaded an impressive array of judges and commentators, that the rule is unsound in theory, unworkable and arbitrary in practice, and unnecessary to achieve any legitimate goals. As an initial matter, the Enelow-Ettelson doctrine is, in the modern world of litigation, a total fiction. Even when the rule was announced, it was artificial. 213
Justice Marshall quoted a Circuit Judge who “urged his court to reject the doctrine outright…Although a majority of the panel declined to do so, it agreed that the Enelow-Ettelson rule was ‘artificial,’ ‘medieval,’ and ‘outmoded.’” 214 Marshall contended that “The historical analysis underlying the results in Enelow and Ettelson has bred a doctrine of curious contours” 215 and that “The case against perpetuation of this sterile and antiquated doctrine seems to us conclusive.” 216 As Marshall put it, “The doctrine, and the distinctions it drew between equitable and legal actions and defenses, lost all moorings to the actual practice of the federal courts.” 217 He explained that “The artificiality of the Enelow-Ettelson doctrine is not merely an intellectual infelicity; the gulf between the historical procedures underlying the rule and the modern procedures of federal courts renders the rule hopelessly unworkable in operation.” 218 Marshall eventually directly overruled Enelow and Ettelson: “We therefore overturn the cases establishing the Enelow-Ettelson rule.” 219
Three years after Gulfstream, the Court used its decision in Payne v. Tennessee 220 to overrule South Carolina v. Gathers (1989) 221 and Booth v. Maryland (1987). 222 Gathers and Booth had prohibited admission of victim impact statements in capital cases. 223 Payne removed this restriction, ruling that a capital sentencing jury should be permitted to consider the impact of a victim's death on their family. 224 Justice Antonin Scalia used his concurring opinion, joined by Justice Sandra Day O'Connor and Anthony Kennedy, to introduce a new word into the Court's overruling vocabulary. As he put it, “Today, … Justice Marshall demands of us some ‘special justification’ – beyond the mere conviction that the rule of Booth significantly harms our criminal justice system and is egregiously wrong – before we can be absolved of exercising ‘[p]ower, not reason.’” 225 The phrase “egregiously wrong” would later be amplified by Justice Brett Kavanaugh in Louisiana v. Ramos (2020) 226 and, as we have already seen, would play a key role in Justice Alito's Dobbs opinion. 227
A 1993 case, United States v. Dixon (1993), 228 provides another striking example of the kind of criticism that characterized the overruling rhetoric of the Escalating Period. Dixon was a constitutional case about the meaning of the Double Jeopardy Clause and whether it barred prosecution of a defendant for conduct for which they had previously been held in contempt of the court. 229 A 5–4 majority overruled Grady v. Corbin (1990), a case decided three years earlier, which held that the Double Jeopardy Clause prevented a person from being charged with a more serious crime after having already been tried, convicted, and punished for the same action in a contempt of court ruling. 230 Dixon ruled that while the Double Jeopardy Clause prevented a defendant from being charged with offenses for conduct for which they had previously been tried, the test for this situation depends upon whether the elements of the case remained consistent between the different prosecutions. 231 The Justices also concluded that a second prosecution was not barred by double jeopardy in either case. 232
Justice Scalia wrote the majority opinion. As he put it, “Grady lacks constitutional roots.” 233 He went on to explain that “[t]he ‘same-conduct’ rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.” 234 Justice Scalia also contended that “The case was a mistake.” 235 He argued that “A hypothetical based on the facts in Harris reinforces the conclusion that Grady is a continuing source of confusion and must be overruled.” 236 Scalia explained that stare decisis is not enough to save this case. He concluded, “We do not lightly reconsider a precedent, but, because Grady contradicted an ‘unbroken line of decisions,’ contained ‘less than accurate’ historical analysis, and has produced ‘confusion’” the Court is forced to review Grady. 237
Apart from criticizing the case itself, Scalia took the unusual step of criticizing Justice David Souter, who served on the Court that decided Grady, by name. Scalia wrote,
[Justice Souter] has apparently been led astray by his misinterpretation of the word ‘incidents’ in the following passage of Nielsen: [W]here, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.' He apparently takes ‘incident’ to mean ‘event’ or ‘conduct.’ What it obviously means, however, is ‘element.’ 238
Justice Scalia extended his attack on Justice Souter by arguing that Souter “provides no authority whatsoever (and we are aware of none) for the bald assertion that ‘we have long held that [the government] must sometimes bring its prosecutions for [separate] offenses together.’” 239 As Scalia put it, “We would mock stare decisis and only add chaos to our double jeopardy jurisprudence by pretending that Grady survives when it does not.” 240 He concluded that “Grady must be overruled.” 241
In the Escalating Period, the overruling of precedent increased in frequency. The rate of overruling cases increased from 1.87 per year in the Developing period to 3.03 per year in the Escalating period. 242 The Court also directly overruled cases much more frequently. From the Developing Period to the Escalating Period, the percentage of direct overrulings increased from 20.9% to 57.85%, an increase of over 2.5x from what it was before. In addition, the Justices had more to say about the cases they overruled. They also were more openly critical in their characterizations of those cases than they were in earlier periods.
Pre-Dobbs Period: 2003-Dobbs
Between 2003 and the Dobbs decision, the Court overruled a total of 22 cases, or 1.16 cases per year. The Court also had more to say about the cases it overruled, and the majority of cases were overruled directly. 243 The Pre-Dobbs Period began in 2003 when the Supreme Court decided Lawrence v. Texas (2003) 244 and legalized consensual same-sex activity. Lawrence overruled Bowers v. Hardwick (1986), 245 and Justice Kennedy, who wrote the majority opinion, described Bowers as a “failure to appreciate the extent of liberty at stake.” 246 He argued, laying the ground for what Alito would say in Dobbs, that Bowers was “not correct when it was decided,” 247 and “not correct today.” 248 It contained “deficiencies…[that] became even more apparent in the years following its announcement.” 249 Kennedy called Bowers a “weakened” 250 precedent, and claimed that the “foundations of Bowers have sustained serious erosion.” 251
Justice Antonin Scalia used his dissent in Lawrence, which Chief Justice William Rehnquist and Justice Clarence Thomas joined, to launch a broadside against Roe v. Wade and the substantive due process decisions that it spawned. Scalia said the Roe majority was guilty of “judicially invent[ing] abortion rights.” 252 He cited scholars and activists who argued that Roe was a “prime example of twisted judging,” 253 failed “to measure up to professional expectations regarding judicial opinions,” 254 and was an “embarrassing performanc[e].” 255 Scalia himself argued that Roe was “unrooted from the Nation's traditions” 256 and had been a “subject [of] unrelenting criticism.” 257
In South Dakota v. Wayfair (2018), 258 a constitutional case interpreting the Commerce Clause, Justice Kennedy ratcheted up the critical tone of the Court's rhetoric of overruling by characterizing the physical presence rule 259 established in National Bellas Hess v. Department of Revenue of Illinois (1967) 260 and later reaffirmed in Quill Corp v. North Dakota (1992) 261 as imposing an “arbitrary, formalistic distinction;” 262 “simply mak[ing] no sense,” 263 “artificial in its entirety,” 264 an “extraordinary imposition by the Judiciary on States' authority,” 265 “unfair and unjust,” 266 creating “inequitable exceptions,” 267 “wrong on its own terms when it was decided,” 268 an “artificial, anachronistic rule,” 269 and “unsound and incorrect.” 270 Kennedy said that subsequent developments made Quill's error “all the more egregious and harmful.” 271
Ramos v. Louisiana (2020), 272 a Sixth Amendment case, offers another example of the sharply critical turn in the rhetoric of overruling. Justice Neil Gorsuch's majority opinion characterized the decision to allow non-unanimous jury verdicts in Apodaca v. Oregon (1972), 273 and Justice Powell's concurring opinion in Johnson v. Louisiana (1972), 274 as a “strange turn” 275 in Sixth Amendment rulings, and as a “badly fractured set of opinions.” 276 He claimed that “no one has found a way to make sense of it.” 277 He called it an “exception,” 278 “unusual,” 279 and said it used “breezy [and skimpy] 280 cost-benefit analysis.” 281 Gorsuch called Apodaca an “error,” 282 “gravely mistaken,” 283 and “unmoored from the start.” 284 He labeled Apodaca a “mistaken decision,” 285 and “an outlier on the day it was decided, one that's become lonelier with time.” 286
The Pre-Dobbs Period also saw new efforts to solidify a jurisprudence of overruling by articulating new standards for overruling. These efforts built on decisions like Payne v. Tennessee (1991) and Agostini v. Felton (1997).
In 1991, the Court used its Payne decision to lay out a multipart test for evaluating whether a prior case should be overruled. In his majority opinion, Justice William Rehnquist identified four factors for determining whether a case should be overruled: whether the case was unworkable or badly reasoned, 287 whether it was a deeply divided decision with strong dissents, 288 whether the Court has questioned the case in later decisions, 289 and whether it has defied consistent application by the lower courts. 290
Six years later, Agostini v. Felton (1997), 291 a constitutional case on the Establishment Clause, overruled both Aguilar v. Felton (1985) 292 and School District of Grand Rapids v. Ball (1985). 293 Justice Sandra Day O'Connor identified two factors that Justices should consider when deciding whether a case should be overturned: whether there have been significant changes or developments in the field of law since the case had been decided 294 and whether more recent decisions of the Court have undermined support for the case. 295
During the pre-Dobbs period, the Court made several other attempts to systematize its approach to overruling precedent. In Leegin Creative Leather Products Inc. v. PSKS, Inc. (2007), 296 a case interpreting the Sherman Act's prohibition of anticompetitive price fixing, the Court identified two factors that should be considered in determining the bindingness of a precedent: did the prior decision create an “unworkable legal regime” (anomalous/inconsistent results), and was the rule that it established part of “our national culture.” 297 In Montejo v. Louisiana (2009), 298 a constitutional case that considered whether, after the appointment of an attorney, a defendant needs to take additional steps to accept the appointment in order to secure the protections afforded by the Sixth Amendment, the Court identified four factors that Justices should consider when determining whether to adhere to stare decisis: how old the case is, 299 whether there are reliance interests at stake, whether the decision was well-reasoned, and whether the decision/rule is workable. 300
But perhaps the most comprehensive contribution to the jurisprudence of overruling made in the Pre-Dobbs period was made by Justice Brett Kavanaugh, who used his concurring opinion in Ramos not only to offer his own criticisms of Johnson's and Apodaca's holdings, but to try to add more structure to the Court's treatment of precedent. 301 Early in his Ramos opinion, Kavanaugh bemoaned the lack of a “consistent methodology or roadmap for how to analyze all the factors taken together” in deciding whether and when to overrule a precedent. 302 Without a comprehensive methodology or roadmap, he worried that such decisions could not be neutral and consistent. 303
In an attempt to describe such a roadmap, Kavanaugh drew upon tests which had been developed in the Escalating period, beginning in Swift & Co. v. Wickham (1965). 304 Swift was a statutory case deciding on court jurisdiction that partially overruled Kesler v. Department of Public Safety (1962). 305 Writing for the Court, Justice John Harlan mentioned three factors the Justices considered when deciding whether Kesler should be overruled: whether the decision had proved to be unworkable, 306 whether it had been regularly criticized since it was handed down, 307 and whether lower courts had difficulties in applying or interpreting the case. 308
But Kavanaugh went beyond those three factors. He listed seven stare decisis factors used in previous cases and grouped them under three general questions. The first requires Justices to ask: “Is the prior decision not just wrong, but grievously or egregiously wrong?” 309 In considering this question, Justices should analyze the quality of the precedent's reasoning, its consistency and coherence with other decisions, changed law and facts, and its workability.
Kavanaugh argued that Justices should next ask, “Has the prior decision caused significant negative jurisprudential or real-world consequences?” 310 Kavanaugh's third question was, “Would overruling the prior decision unduly upset reliance interests?” 311
Justice Kavanagh's Ramos opinion offered the most explicit and complete standard for applying stare decisis in the Supreme Court's history. His use of the term “egregiously wrong” set a high (but not insurmountable) bar for overruling precedents 312 and set the stage for Dobbs.
Between Ramos and Dobbs, there was only one other overruling case: Edwards v. Vannoy (2021), a case determining whether the new criminal procedures announced in Ramos would have retroactive effects. 313 Kavanaugh wrote the majority opinion but, oddly enough, did not apply his own test in laying out his reasons for overruling Teague v. Lane's (1989), which held that new criminal procedure rules do not apply retroactively in cases decided on direct review around the time the new rule is decided. 314 Nonetheless, in keeping with the contemporary rhetoric of overruling, he called the Teague decision: “non-existent in practice,” 315 “moribund,” 316 “retaining no vitality,” 317 a “fiction,” 318 and “an illusory exception that misleads litigants and judges and needlessly expends the scarce resources of defense counsel, prosecutors, and courts.” 319
In the Pre-Dobbs Period, the Court spent more time describing and criticizing the cases it overruled than was true in earlier periods. Its rhetorical posture in overturning precedent was direct and very critical. And if judicial legitimacy is built on a framework of respect that courts show for the work of other courts, the Justices seemed to care more about achieving their desired results than in preserving the reputational capital built up by adhering to the doctrine of stare decisis. By the early twenty-first century, the jurisprudence of overruling had teed up a range of factors and tests that Justices could draw on when faced with a challenge to precedent. But, as in many other areas, rather than making decisions about overruling more predictable, the proliferation of tests offered Justices more room for maneuver. 320
Conclusion: The Rhetoric of Overruling and the Supreme Court's Legitimacy Problem
Our survey of the history of Supreme Court decisions in which precedent has been overruled suggests a clear direction of change. The opinions of the modern Court are more critical of the decisions they overrule than were those that overruled precedent throughout most of American history. A review of that history suggests that Alito's Dobbs opinion was continuous with, but also an intensification of, the rhetorical style used in overruling decisions in the past sixty years.
Alito did not say anything that had not been said before in cases overturning precedent; what was different was the intensity and repetition of the criticism he offered of Roe and Casey. All told, he criticized those opinions 36 times in his Dobbs opinion. Never before had the Court directed such a barrage of criticism at a precedent it was overruling. 321
If overruling precedent always has the “potential to undermine the rule of law and therefore the legitimacy of the Court,” 322 Dobbs certainly upped the ante. A 2023 survey done by the Pew Research Center found that 44% of Americans had a favorable view of the Court, while 54% had an unfavorable view. 323 But support for the Court has dropped 26% since 2020, 324 and Pew notes that this is the first time since they started polling in 1987 that the public's view of the Court is “significantly more negative than positive.” 325 Dobbs' reversal of Roe and Casey, and Alito's intense criticism of those decisions are no doubt part of the reason for this shift in public sentiment. 326
In the end, the rhetoric of overruling in Dobbs may be explained both by the contentiousness of the abortion issue 327 and the growing polarization of the Court. 328 But if Dobbs marks another ratcheting up in critical rhetoric when precedent is overruled, we can expect further damage to be done in future overruling cases to the public's faith in the Supreme Court as an impartial body dedicated to, and bound by, the rule of law.