Making Our Democracy Work (25 page)

Thus, in
Brown
a unanimous Court overturned an earlier decision
that the justices considered legally wrong, out of step with society and the law, and unusually harmful. Subsequently, the Court modified or overturned law set forth in a host of other cases, destroying rules that permitted racial segregation, and modifying the law of remedies, in order to make its
Brown
decision effective.
⁴

Directly overruling an earlier decision, as the Court did in
Brown
, is exceptional. Ordinarily, stare decisis is the rule. Lower-court judges, lawyers, clients, and ordinary Americans all need stable law so that judges can decide their cases, lawyers can advise their clients, clients can make decisions, and ordinary Americans can buy homes, enter into contracts, and go about their daily lives without fear that changes in the law will turn their lives topsy-turvy.
⁵

A printed, circulated Supreme Court decision helps the judge, lawyer, client, and ordinary American know what the law is. By overturning a case, the Court can create uncertainty and undermine the reliance that bench, bar, and public have invested in the earlier decision. Moreover, the more the Court overrules earlier cases, the more it will gain a reputation for being willing to do so. And that reputation itself creates uncertainty. Is the legal material circulated authoritative? Will it remain so? Will legal changes undermine business, family, or social decisions? Will a new case that resolves uncertainty long remain the law, or will a new Court overturn it, thereby denying the public the advantages of the newer, “better” second decision for which the Court had hoped? At the same time, a Court that overturns too many earlier decisions encourages the public to believe that personalities or politics, not law, determine the outcome of Court cases. And that belief undermines the public’s confidence in the Court.

I
F THE
C
OURT
should normally apply the principle of stare decisis but can sometimes overturn an earlier case, how does it know when to do which? The Court has referred to several factors that help answer the question. First, the Court has said that the principle of stare decisis applies more rigorously when a statute, rather than a constitutional
provision, is at issue. That is because Congress can easily change a statutory decision, but neither Congress nor anyone else can easily amend the Constitution. Normally, the only practical way to change a constitutional decision is for the Court to reconsider it.
⁶

Second, the public’s reliance on a decision argues strongly (but, as
Brown
shows, not determinatively) against overruling an earlier case. The public may well rely, for example, on a decision that affects property or contracts. Individuals and firms may have invested time, effort, and money based on that decision. The more the Court undermines this kind of reliance, the riskier investment becomes. The more the Court engages in a practice that appears to ignore that reliance, the more the practice threatens economic prosperity.
⁷

Third, the more recently the earlier case was decided, the less forcefully the stare decisis anti-overruling principle should be applied. When only a short time has elapsed, we may not yet know that a decision will have harmful effects; it is also unlikely that either the bar or the public will yet have relied significantly upon the earlier case.
⁸

Fourth, the Court can, and often should, overrule an earlier decision that has created a set of unworkable legal rules. Such a decision may have proved confusing or created legal conflict or otherwise caused serious harm. Confusion may mean no one reasonably relied on the case. In any event, overruling is more likely, on balance, to prove beneficial.
⁹

Fifth, if case B has overruled case A, it is more reasonable for the Court to overrule B, thereby restoring A. That is because case B has already upset expectations and a restoration may not, on balance, cause further difficulty.
¹⁰

Sixth, the Court should exercise particular caution before overturning a case that has become well embedded in national culture. In the 1960s, for example, the Court decided
Miranda v. Arizona
, which held that the police must warn a suspect of his constitutional rights to remain silent and to have a lawyer. Over the next few decades most Americans, through television or otherwise, became aware of this basic legal rule—that the police must warn suspects before questioning them. Then, in 2000, when the Court considered whether to overrule
Miranda
, it took account of the fact that the general public understood
Miranda
and had come to expect the police to follow its holding. And for that reason even members of the Court who thought
Miranda
wrongly decided have refused to overrule it.
¹¹
On the other hand, the law has long strictly regulated (and often forbade) expenditures made by corporations and trade unions to help elect candidates for public office. Yet, in January 2010 the Court (by a vote of 5 to 4) held that a congressional statute of this kind violated the First Amendment’s free speech guarantees. In doing so, the Court overturned two recent cases, and in the view of the dissenters (of which I was one), the Court disregarded a traditional legal view that stretched back as far as 1907.
¹²

T
HE ABOVE SIX
principles emphasize harm, confusion, change, and lack of reasonable reliance as justifications for overruling an earlier case. But (as the examples just given, of
Miranda
-warnings and campaign expenditures suggest) they often do not dictate any particular result, they can conflict, they are highly general, and their application calls for the use of pragmatic judgment. That is, these principles can do no more than guide judges who might well disagree about how they apply in any particular case. Nonetheless, several special features of the Supreme Court offer a temptation to overrule earlier cases. In order to resist that temptation, when we apply our principles, we should ordinarily place a thumb on the scale in the direction of stability.

First, an earlier decision that the Court’s members now think wrong is not likely to change without their intervention. That fact is obvious when the earlier decision interprets the Constitution, for it is difficult to amend the Constitution. Doing so normally requires a favorable vote of two-thirds of each house of Congress and ratification by three-fourths of the states. And the nation has amended the Constitution only twenty-seven times. The difficulty of obtaining change is less obvious when the Court interprets a statute, but it is nonetheless true. In theory, Congress can write a new statute. In practice, Congress will do so only if it can find the legislative time and the necessary political will. It will probably find that political will only when change is politically
popular or when well-organized groups make that change a major issue. Thus judges sometimes think that they themselves should overturn a case that they believe is wrong or when change will probably never take place.
¹³

Second, the Court does not have many opportunities to overturn earlier cases. The Court fully hears only about eighty cases per year, very few of which require or permit the Court to reconsider a previously decided case the Court believes is wrong. Those that do involve such a case may fail to meet other criteria, such as a division of opinion among the lower courts, that determine whether the Court should hear a case. Thus justices who have before them a case that provides an opportunity to overturn an earlier decision that a number of them think is wrong know that the opportunity will not likely arise again. It is “now or never.”

Third, because life tenure for the justices means a Court membership that changes only slowly over time, it also means that different members appointed after long intervals by different presidents may well have different philosophical views. A president cannot control the votes of the Court during his limited time in office or even of the judges that he has appointed. President Theodore Roosevelt appointed the great justice Oliver Wendell Holmes, who almost immediately took an antitrust-law position totally contrary to Roosevelt’s views on the subject. And Roosevelt reportedly responded, “I could carve out of a banana a judge with more backbone.”
¹⁴

Presidents and their judicial appointees are more likely, however, to share a basic philosophical approach to the country and to the law, and how they relate to each other. Thus without any Court judge compromising his or her total independence, different judges will have different philosophical approaches about how best to apply highly general constitutional terms such as “liberty,” “equal protection,” and “due process of law.” And judges on one Court may have different basic views on such subjects from their predecessors. It is consequently not surprising if a later Court considering an earlier case believes that the earlier Court decision was absolutely wrong.

Members of the Court might reasonably think (1) “that earlier case is completely wrong, even untrue to the Constitution,” (2) “if we do not
change it, no one will,” and (3) “it’s now or never.” I would add one further consideration, namely, that a case does not always unambiguously stand for a clear proposition of law. Consider a mother who tells a child not to bring up medical matters when Grandma comes because it will make Grandma think of her own recent illness. The mother has taught the child a rule of behavior, but she cannot describe its precise boundaries. Consider a case that holds that when a policeman properly arrests a driver, he can search the car without getting a warrant. What shapes the boundaries? Police safety, the need for a clear, simple rule, both? How does the case apply to a search after the arrested driver is handcuffed and put in the back of a squad car? My point is that stare decisis is not mechanical and fidelity to an earlier Court decision is often a matter of degree or interpretation.
¹⁵

As a result, a judge will find it psychologically difficult to remain faithful to a decision with which he or she disagrees. A judge will almost inevitably resist adherence, for example, to an earlier interpretation that gives the Constitution a meaning that the judge is convinced the Constitution does not have. At the same time, overruling inevitably reflects a pragmatic decision-making process in which different judges give different weights to the individual factors that the Court has found relevant. Thus in one recent term, the members of the Court debated (dividing 5 to 4) whether they should overrule or depart from prior decisions in numerous areas of law, such as abortion, campaign finance, and antitrust. In all of these decisions I was in the minority in part because I thought the Court had overruled prior decisions and was wrong to do so.
¹⁶

The strength of the forces pushing the judge toward overruling earlier cases makes it particularly important for a pragmatic judge, before deciding to overrule an earlier case, to take careful account of the opposite considerations, those that favor stability and stare decisis. Those considerations do not always convincingly militate against overruling an earlier case. To the contrary, the Court was surely right to overrule
Plessy v. Ferguson
. And by unanimously overruling that decision, it helped overcome the claim of
Brown
’s opponents that the
Brown
decision was not legally sound.

Still, the psychological factors I have mentioned indicate that the
Court in each instance should check any impulse to overrule against the need to overrule. The Court should remain aware of the nature of its own temptations to “straighten out” the law as well as the practical advantages of unanimity and uniformity. Although these practical considerations do not dictate outcomes, they require a judge to think long and hard before overruling. Doing so helps to maintain the Court’s institutional strength and a system of Court decision making that works well in practice. Both, in turn, help to maintain public acceptance of the Court’s decisions.

T
HE
C
ONSTITUTION IMPOSES LIMITS ON GOVERNMENT IN
an effort to protect the rights and liberties of individuals. Part III continues the discussion of pragmatic approaches while considering, through examples, how the Court applies the permanent principles underlying that protection to changing circumstances. It focuses on the Second Amendment, with its protection of the right “to keep and bear Arms,” to illustrate how the Court locates the appropriate permanent value as well as how it applies that value in the presence of critically important competing interests. And it describes the Japanese internment and Guantánamo Bay cases to illustrate the practical problems involved when the Court seeks to protect basic individual liberties during wartime or when special national security needs increase the difficulty of the Court’s holding a president accountable.

T
HE
C
ONSTITUTION EXPRESSLY
protects the liberty of individuals through the Bill of Rights. The First Amendment, for example, says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nor can Congress enact any law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourth Amendment protects individuals against “unreasonable searches and seizures.” The Fifth and Sixth amendments guarantee certain rights, including fair trial rights, to those accused of crimes. The Fourteenth Amendment makes these, and other, constitutional protections applicable where state governments, not just the federal government, are involved.