Bench Memos

Law & the Courts

Liberal About-Face on Overruling Precedent

Just a week ago, legal reporters were busy trumpeting Justice Breyer’s dissent in Franchise Tax Board v. Hyatt. The legal issue in that case was a state’s sovereign immunity from a lawsuit filed in another state. Even though the case had nothing to do with abortion, Breyer, joined by his three liberal colleagues, used the majority’s overruling of a 1979 precedent, Nevada v. Hall, as the occasion to sound alarms that the Court might overrule Roe v. Wade and Planned Parenthood v. Casey (as it certainly should do). In order to defend Roe and Casey, Breyer offered a paean to the importance of stare decisis:

Perhaps the majority believes that there has been insufficient reliance on Hall to justify preserving it. But any such belief would ignore an important feature of reliance. The people of this Nation rely upon stability in the law. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.

I understand that judges, including Justices of this Court, may decide cases wrongly. I also understand that later-appointed judges may come to believe that earlier-appointed judges made just such an error. And I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided. But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it.

This past Monday, the same four liberal justices were suddenly singing a very different tune. In her majority opinion in Herrera v. Wyoming—a case concerning a tribe’s hunting rights under a treaty from 1868—Justice Sotomayor, joined by her three liberal colleagues and Justice Gorsuch, did not hesitate to overrule a precedent from 1896, Ward v. Race Horse. The Race Horse decision, the majority concluded, could not be reconciled with the Court’s 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians:

[Although the decision in Mille Lacs did not explicitly say that it was overruling the alternative ground in Race Horse, it is impossible to harmonize Mille Lacs’ analysis with the Court’s prior reasoning in Race Horse.

We thus formalize what is evident in Mille Lacs itself. While Race Horse “was not expressly overruled” in Mille Lacs, “it must be regarded as retaining no vitality” after that decision. To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. [Citation omitted.]

So much for the people’s general “rel[iance] upon stability in the law.” So much for the “increased uncertainty” that every overruling of a case produces. So much for “overruling prior precedent only when the circumstances demand it.”

I haven’t studied the legal questions in Hyatt and Herrera and therefore take no position on who got them right. I further will assume arguendo that there are ample grounds for the liberal justices to believe that Hyatt shouldn’t have overruled Hall and that Herrera properly overruled Race Horse. My narrow point is that Herrera exposes how overblown Breyer’s stare decisis rhetoric in Hyatt is.

On the bright side, I suppose that the liberal justices have charted a two-step course for the overruling of Roe and Casey that they won’t object to. The first step is a decision—let’s call it, say, Box v. Planned Parenthood—that doesn’t explicitly overrule those cases but that is in tension with them. In a second decision, the Court can then write:

Although the decision in Box did not explicitly say that it was overruling Roe and Casey, it is impossible to harmonize Box’s analysis with the Court’s prior reasoning in Roe and Casey.

We thus formalize what is evident in Box itself. While Roe and Casey were not expressly overruled in Box, they must be regarded as retaining no vitality after that decision. To avoid any future confusion, we make clear today that Roe and Casey are repudiated.

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