Overruled by Implication

• Publication year: 2009

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 33, No. 1FALL 2009

Overruled by Implication

Bradley Scott Shannon (fn*)

I. Introduction

The Supreme Court of the United States has repeatedly stated that it reserves the exclusive "right" to overrule its own precedents.(fn1) This proposition, as far as it goes, seems fairly unproblematic, as the concept of vertical stare decisis is well established in American jurisprudence.(fn2) Thus, though some have suggested that lower courts should have some ability to disregard Supreme Court precedent,(fn3) most would agree that mere disagreement with a prior decision, a belief that a case was wrongly decided, a sense that a case would be decided differently if decided today, or even a thought that, for reasons independent of any decision, a holding is likely to be overruled are insufficient reasons for disregarding superior court precedent.(fn4)

A different problem arises when two or more Supreme Court precedents seem to conflict. What if an apparently relevant precedent has been eroded by one or more later decisions? One might expect that, in the event of irreconcilable conflict, the more recent precedent would control.(fn5) Yet, in Rodriguez de Quijas v. Shear son'American Express, Inc.,(fn6) the Court stated: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."(fn7) This statement is troublesome in that it has caused lower courts to follow Supreme Court precedent that has not yet been expressly overruled, but has been overruled by implication. This Article shows that this statement need not be followed-and indeed, if lower courts are to faithfully comply with their duties under vertical stare decisis, it must not be followed.

The next Part of this Article begins with a discussion of the Supreme Court's longstanding practice of overruling by implication, and it provides as an example the Court's implicit overruling of its holding in Almendarez-Torres v. United States(fn8) Part II also shows that, notwithstanding the overruling of Almendarez-Torres, lower courts continue to follow that precedent, largely because of Rodriquez de Quijas. Part III of this Article consists of a criticism of the Court's statement in Rodriguez de Quijas. Part III shows that this statement is dicta and therefore need not be followed by any lower court. Part III further shows that even if regarded as somehow binding on lower courts, the Court's statement in Rodriguez de Quijas has itself been overruled by implication, thereby obligating the lower courts to disregard contrary authority. Finally, Part III shows that the Court's statement in Rodriguez de Quijas should be expressly overruled, both because it fails to survive the Court's own test for assessing the viability of precedent and because an express overruling would more clearly indicate that the Court's statement in Rodriguez de Quijas cannot be read as impeding the lower courts' ability to resolve precedential conflicts. This Article concludes that, regardless of whether the Court expressly overrules Rodriguez de Quijas, lower courts must disregard the Court's statement in that case and consider themselves free to recognize when cases, such as Almendarez-Torres, have been overruled by implication.

II. The Practice of Overruling by Implication And the Problem Created by Rodriguez de Quijas

A. The General Concept of Overruling by Implication

Though lower federal courts, as well as state courts, are obligated to follow Supreme Court precedent on matters of federal law,(fn9) the Supreme Court itself is not so bound. Rather, the Supreme Court has the power to overrule its own precedent(fn10) and has in fact overruled precedent on many occasions.(fn11) When the Supreme Court does overrule precedent, it often does so expressly.(fn12) In that situation, lower courts are obliged to follow the overruling decision.(fn13) But the Supreme Court sometimes overrules prior holdings only by implication.(fn14) As the Court stated more than a century ago: "Even if it were true that the decision referred to was not in harmony with some of the previous decisions, we had supposed that a later decision in conflict with prior ones had the effect to overrule them, whether mentioned and commented on or not."(fn15) Thus: "Although a lower court is bound by a prior decision of a higher court until that decision is overruled, there are circumstances in which a prior decision will be overruled implicitly rather than explicitly. A lower court is not bound to follow a decision that has been implicitly overruled."(fn16)

Therefore, it should be apparent that no special language is necessary to overrule a prior decision; the simple existence of some later, irreconcilably inconsistent holding by the same court is sufficient.(fn17) Indeed, it does not seem particularly important whether the later court intended to overrule its prior holding or whether it was even aware that it was doing so.(fn18) Thus, at the Supreme Court level, precedent-to the extent it exists-may be either followed, distinguished, or overruled. There are no other choices.(fn19) Though it might be possible for a Court to be ignorant of or even to consciously disregard relevant precedent, the resulting holding, unless distinguishable, must be seen as overruling the earlier precedent.(fn20) If that result was unintended or mistaken, it may of course be corrected in the future, in that the implicit overruling may itself be overruled. But until that time, the later decision must control-the two conflicting precedents cannot co-exist.(fn21)

Some have criticized the practice of overruling by implication,(fn22) and certainly, express overruling has some advantages. For one thing, express overruling more clearly informs the consumers of judicial decisions that a prior precedent is no longer good law.(fn23) Express overruling also might cause the issuing court to more carefully consider whether overruling is truly appropriate (or to at least articulate those considerations expressly).(fn24) Indeed, it might well be that reasons supporting express overruling outweigh those favoring overruling by implication.

But, while there might be normative concerns with overruling by implication, there do not appear to be any legal impediments to the use of this practice-i.e., there does not seem to be anything unconstitutional about it, and neither Congress nor the Court itself has repudiated this practice.(fn25)

Moreover, a consistent practice of express overruling, even if preferable, is not as easy as it might sound. For one thing, a serious cornmitment to express overruling would require a search of the relevant reporters for any and all precedents contrary to any aspect of the holding of each later case. Such a search, particularly considering the number of cases the Court might decide in any given year, seems impracticable.(fn26) And even when express overruling is utilized, a somewhat related problem arises. Specifically, when the Court announces that one of its prior precedents has been overruled, it is probably the rare case in which every aspect of that prior holding is no longer good law. More typically, a later Court will only be overruling certain aspects of a prior holding-crucial aspects, to be sure, but less than all. Thus, though the Court typically announces overrulings without qualification,(fn27) ideally it should be stating that it is overruling only those aspects of its prior holdings implicated by the current holding. Though this too has been done on occasion (at least to some extent),(fn28) it is probably asking too much to expect courts to perform this exercise in every situation in which it arises. Overruling by implication avoids both of these problems (albeit by placing the burden of ascertaining the precise scope of a court's precedents on future courts and litigants). Thus, not only is overruling by implication permissible and done in fact, it also might be practically necessary, at least to some extent.

B. A Case Study in Overruling by Implication: The Implicit Overruling of Almendarez-Torres v. United States

Though examples of cases that have been overruled by implication are legion, one prominent, recent example can be found in Almendarez-Torresv. United States(fn29)

Almendarez-Torres involved the determination of the elements of a crime with regard to the constitutional rights of a criminal defendant. It is established as a matter of federal constitutional law that the elements of a crime "must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt."(fn30) The key question in Almendarez-Torres related to the meaning of the term "element." It has long been held that this term consists of "every fact necessary to constitute the crime with which he is charged,"(fn31) and certainly, it includes what might be regarded as the "traditional" elements of a crime.(fn32) But does it include more? Specifically, does the Constitution require the inclusion of elements beyond those "facts" more traditionally regarded as the elements of a crime?

In Almendarez-Torres, the Supreme Court addressed this question in connection with 8 U.S.C. § 1326 and the crime of Alien in the United States After...