Intragenerational constitutional overruling.

• Author: Powe, L.A., Jr.
• Position: The Evolution of Theory: Discerning the Catalysts of Constitutional Change

INTRODUCTION

The oral argument over affirmative action in Fisher v. University of Texas (1) began with a question of Fisher's standing, but after a few brief exchanges, Justice Stephen Breyer changed the subject to the potential overruling of Grutter v. Bollinger (2): Was Fisher asking that Grutter be overruled? Justice Breyer explained that Grutter said affirmative action would last for twenty-five years and "I know that time flies, but I think only nine of those years have passed." (3) Grutter was not from another era and had engaged the Court's "thought and effort," so why overrule it? (4) Fisher's counsel understood the question and disclaimed any interest in "chang[ing] the Court's disposition of the issue in Grutter." (5)

This Article seeks to shed some light on a comparatively rare, but important issue in constitutional jurisprudence: Under what circumstances does the Supreme Court formally overrule one of its own significant constitutional precedents within the same judicial generation as the announcement of the precedent? This phenomenon is one part of the broader role of precedent and stare decisis in fashioning and maintaining constitutional law--albeit in part because of the modifier "significant"--there are a limited number of such cases (some three dozen where the overruled case was decided after the introduction of President Franklin Roosevelt's Court-packing plan, roughly once every other term). All of the cases contain at least one Justice (and typically more) who participated in the overruled case. Therefore, we can observe the willingness, if any, of Justices to change their minds in situations where formal adherence to stare decisis would counsel them not to. We can also see if the Justices' views on stare decisis and overruling have changed over time.

1. CASEY

   Today, the formal legal standard governing the decision to overrule is embodied in Planned Parenthood of Southeastern Pennsylvania v. Casey. (6) By the early 1990s, Roe v. Wade (7) had been under increasing assault at the Supreme Court for a decade, (8) so with the confirmation of Justice Clarence Thomas both pro-choice and pro-life activists believed that Roe would soon be overruled by either a six-to-three or five-to-four vote. (9) Instead, in Casey, the Court created a newly minted version of Roe, then saved that version by overruling two post-Roe decisions, (10) all the while offering the modern era's most detailed explanation of when the values of stare decisis should yield to the demands to overrule. (11)

   The Casey Court asserted that four alternative pragmatic considerations go into deciding whether to overrule. First, has the rule of the prior case proven unworkable? (12) Second, has there been such reliance on the rule that overturning it would work hardship on affected parties? (13) Third, has the rule been eroded by subsequent developments in the law? (14) Fourth, have the underlying facts changed or come to be seen differently so as to rob the rule of justification? (15)

   The Casey Court then concluded that none of these considerations justified overruling the "central holding" of Roe that a woman has a right to choose an abortion before viability, a right that cannot be unduly burdened by government regulation. (16) Roe had not proven unworkable. While "reliance on Roe cannot be exactly measured," the cost of overruling "for people who have ordered their thinking and living around that case [cannot] be dismissed." (17) Thus Roe was deemed that rarest of situations where reliance was found outside of a commercial context. Subsequent doctrine had not weakened Roe's "doctrinal footings." (18) Finally, while "time ha[d] overtaken some of Roes factual assumptions"--changing when viability begins and allowing for safer late-term abortions--the Court stated that these went to timing and competing interests and "ha[d] no bearing on the validity of Roe's central holding." (19)

   The Casey Court went on to contrast its decision with earlier Courts' decisions to overrule Lochner (20) (employing Lochner as a short-hand for the Court's pre-1937 laissez faire jurisprudence) and Plessy v. Ferguson. (21) In both situations the Court concluded that the underlying facts had either changed or were understood differently, so much so that the Court would have paid a "terrible price" had it not overruled. (22) With the Great Depression, most people understood that an unregulated market could not "satisfy minimal levels of human welfare." (23) Similarly most people could understand that Plessy's conclusion that segregation did not stamp African-Americans with a badge of inferiority was no longer tenable; segregation stigmatized and penalized African-Americans. By contrast because none of the pragmatic criteria pointed to overruling Roe, overruling it would be seen to constitute caving to political pressure: the Court would therefore pay "the terrible price" if it jettisoned Roe. (24)

   Having concluded not to overrule Roe--or, more precisely, to reconceptualize Roe and then to stand fast behind that reconceptualization--the Court then proceeded to overrule two cases applying Roe. The Casey Court's newly fashioned "undue burden" test allowed states to require specific record keeping, to require a specified informed consent, and to impose a waiting period between the consent and the abortion. (25) Roe's so-called "central holding" was important; its various applications less so and hence less entitled to the benefits of stare decisis for reasons that remain somewhat obscure.

   The Court's treatment of stare decisis enjoys credibility because Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter appear to have changed their positions--at least in part, if perhaps not entirely--out of respect for stare decisis. Justice O'Connor had been supportive of regulations of abortion in the 1980s. (26) Justice Kennedy had questioned abortion as a constitutional right in the only direct challenge to abortion since he took his seat. (27) All three Justices had been in the majority in Rust v. Sullivan, (28) ostensibly a First Amendment case but in reality one driven by opposition to abortion. The three Justices who had participated in Roe remained unchanged. Justice Harry Blackmun fully supported Roe, while Justices Byron White and William Rehnquist, the two original dissenters, supported overruling. (29)

   Although the Casey holding on stare decisis remains, formally, the governing rule (or set of legal standards) by which to judge whether a constitutional precedent should be overruled, (30) a moment's reflection reveals several deficiencies with Casey's approach. For starters, the Court's treatments of Lochner and Plessy are plainly disingenuous. The Court that eviscerated Lochner' s economic substantive due process law and the Warren Court that uprooted the "separate but equal" doctrine knew that Lochner and Plessy were wrong the day they were decided on the basis of facts then known to anyone who bothered to read the first Justice John M. Harlan's dissent in both cases.

   Thus, one needs to add to Casey's list of four considerations another: Do the Justices now feel that the case was wrong the day it was decided? Michael Gerhardt's study of precedent concluded this was the second most common reason for overruling, (31) and, indeed, it may be possible that the "wrong when decided" test supplants all others, except perhaps the reliance factor.

   Why does Casey not mention this criterion for overruling? I suspect that it was unmentioned for an obvious reason--it was the precise claim the four Casey dissenters leveled at Roe, and Justices O'Connor, Kennedy, and Souter appeared unwilling (and perhaps unable) to defend Roe against that claim.

   Further, as the doctrinal (shall we say?) elasticity underlying Casey shows, "overruling" is not a simple on/off switch. Casey totally reconceived Roe's logical basis, completely rewrote the rules of Roe, overruled two of Roe's ancillary decisions, and then pronounced that respect for stare decisis counseled that Roe should not be overruled. "Applying precedents requires interpreting them, interpreting them frequently entails modifying them, and modifying them often entails extending or contracting them." (32) Slightly differently put, because the Court has freedom to do whatever pleases it at the moment, (33) overruling is merely one of many options available to the Court in drafting (and crafting) an opinion, as Casey itself reveals. Inconsistent precedent can be ignored. (34) Or it can be disingenuously distinguished. (35) Express overrulings are infrequent compared to decisions that render prior law irrelevant. (36) Even less frequent are cases where the Court says it reaches a result under the Constitution because precedent compels it notwithstanding that some of the Justices find the result untenable. (37) There must be, then, a fair amount of bobbing and weaving going on in the Court's interpretation of its precedents. (38)

   Finally, the Casey treatment of overruling has an almost pristine naivete about it, suggesting that overruling takes place only when something internal to law has changed--and therefore that that something is neither the composition of the Court nor the ideologies of the Justices. Deciding whether to change the law, the Court would have us believe, requires simply the application of four fairly objective tests whose outcomes should not be greatly affected by the ideologies, backgrounds, or political ambitions of those applying them. Casey seems to suggest that the decision whether or not to overrule depends not on changes in the Court's personnel but rather changes in society. The counterpoint to this view was expressed by Justice Antonin Scalia three years before Casey when he wrote that " [o]verrulings of precedent rarely occur without changes in the Court's personnel." (39) What would we perceive if we look at intragenerational constitutional overrulings through the lens of a...