Precedent and jurisprudential disagreement

Texas Law Review

Volumn 91, Issue 7, 2013, Pages 1711-1737

  Barrett, Amy Coney ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 84883273433     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (287)

1. See infra notes 22-24 and accompanying text.
2. Cf. Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 CALIF. L. REV. 535, 537 (1999) ("Anyone who cares about constitutional law confronts a large and proliferating number of constitutional theories, by which I mean theories about the nature of the United States Constitution and how judges should interpret and apply it.").
3. See Amy Coney Barrett, Stare Decisis and Due Process, 74 U. COLO. L. REV. 1011, 1065 (2003) (describing the development of stare decisis in the federal judicial system).
4. See Michael J. Gerhardt, The Irrepressibility of Precedent, 86 N.C. L. REV. 1279, 1283 (2008) (asserting that "by 1900 the Supreme Court had settled into the practice of citing and relying upon its precedents as modalities of argumentation and sources of decision").
5. Amy Coney Barrett, supra note 3, at 1015.
6. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("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.").
7. Amy Coney Barrett, supra note 3, at 1015. In addition to the variations described in the text, both vertical and horizontal stare decisis are dependent upon jurisdictional lines. District courts need only obey decisions of the court of appeals in the circuit in which they sit, and courts of appeals are not bound by the decisions of their sister circuits.
8. See John Harrison, The Power of Congress over the Rules of Precedent, 50 DUKE L.J. 503, 516-18 (2000).
9. See Amy Coney Barrett, supra note 3, at 1015 & n.13 ("As a general rule, the district courts do not observe horizontal stare decisis.").
10. See id. at 1015 (suggesting that courts of appeals feel the restrictions imposed by horizontal stare decisis more strongly than do district courts or the Supreme Court).
11. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991).
12. See Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317, 321 & nn.20-22 (2005). As I have discussed elsewhere, the categories make much less sense at the circuit level, whatever their merit at the Supreme Court.
13. Id. at 327-51.
14. Id. at 321 & n.22.
15. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 (1932) (Brandeis, J., dissenting) ("[I]n cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.").
16. See Amy Coney Barrett, supra note 3, at 1068 ("[J]udges do not decide cases in a vacuum; rather, precedent always affects the way they view the merits."). In this regard, stare decisis promotes efficiency.
17. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992) (plurality opinion).
18. citing Benjamin N. Cardozo, The Nature Of The Judicial Process 149 (1921), for the proposition that "no judicial system could do society's work if it eyed each issue afresh in every case that raised it").
19. See 343 U.S. 579, 634-38 (1952) (Jackson, J., concurring) (articulating a three-part framework for evaluating presidential assertions of power).
20. Cf. Philip Bobbitt, Constitutional Fate: Theory Of The Constitution 7 (1982) (describing the modalities of constitutional argument).
21. See Michael J. Gerhardt, The Power Of Precedent 65 (2008) ("The extreme frequency with which the justices cite, or ground their opinions in, precedent establishes precedent as a, if not the, principal mode of constitutional argumentation.").
22. For an excellent catalogue of the many contributions other than constraint that stare decisis makes to constitutional law, see id. at 147-76.
23. See Antonin Scalia, A Matter Of Interpretation: Federal Courts And The Law 139 (1997) ("The whole function of the doctrine is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.").
24. Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 570 (2001) ("The force of the doctrine ... lies in its propensity to perpetuate what was initially judicial error or to block reconsideration of what was at least arguably judicial error.").
25. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) ("Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.").
26. For example, Justin Driver argues that common law theories of constitutional adjudication risk overemphasizing the importance of stare decisis, for judges should feel free to "cast aside their predecessors' outmoded thinking." Justin Driver, The Significance of the Frontier in American Constitutional Law, 2011 SUP. CT. REV. 345, 398 (2012). "Living constitutionalism, properly conceived, must create significant leeway for judicial interpretations that deviate from even well-settled precedents.".
27. Some originalists insist that the Court may never follow precedent that conflicts with the Constitution's original meaning. See, e.g., Randy E. Barnett, Response, It's a Bird, It's a Plane, No, It's Super Precedent: A Response to Farber and Gerhardt, 90 MINN. L. REV. 1232, 1233 (2006) (describing himself as a "fearless originalist[]" because he is willing to reject stare decisis when it would require infidelity to the text).
28. Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 25-28 (1994) (arguing that it is unconstitutional to adhere to precedent in conflict with the Constitution's text). Other originalists concede that the Court may do so in rare circumstances.
29. See, e.g., John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 NW. U. L. REV. 803, 834 (2009) ("Under our consequentialist approach, the goal is to use the original meaning when it produces greater net benefits than precedent and to use precedent when the reverse holds true.").
30. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989) (characterizing himself as a "faint-hearted originalist" because of his willingness to follow some precedents that may conflict with the Constitution's text).
31. See, e.g., Thomas W. Merrill, The Conservative Case for Precedent, 31 HARV. J.L. & PUB. POL'Y 977, 981 (2008) ("A judiciary that stood firm with a strong theory of precedent would rechannel our nation back toward democratic institutions and away from using the courts to make social policy.").
32. See Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. PA. J. CONST. L. 155, 159 (2006) (advancing a neoformalist argument as to why "the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions").
33. See Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 752 (1988) (arguing that the Court should follow precedent even when overruling it would not unduly disrupt societal expectations or institutions in order "to demonstrate-at least to elites-the continuing legitimacy of judicial review").
34. See, e.g., id. at 755 n.184 (explaining that the author "focuses on stare decisis in terms of the Court rather than in terms of the obligation of an individual member of the Court towards precedent").
35. See, e.g., Citizens United v. FEC, 558 U.S. 310, 362 (2010) ("Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.").
36. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 858 (1992) (plurality opinion) ("Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection").
37. Payne v. Tennessee, 501 U.S. 808, 842-43 (1991) (Souter, J., concurring) ("[W]hen this Court has confronted a wrongly decided, unworkable precedent calling for some further action by the Court, we have chosen not to compound the original error, but to overrule the precedent.").
38. Oregon v. Mitchell, 400 U.S. 112, 218 (1970) (Harlan, J., concurring in part and dissenting in part) ("I think it my duty to depart from [these cases], rather than to lend my support to perpetuating their constitutional error in the name of stare decisis.").
39. 556 U.S. 332 (2009).
40. 453 U.S. 454 (1981).
41. See Gant, 556 U.S. at 341 (characterizing this as the dominant view of Belton).
42. see also id. at 357 (Alito, J., dissenting) (asserting that the categorical rule established by Belton "could not be clearer").
43. 395 U.S. 752 (1969).
44. See id. at 763 (maintaining that the Fourth Amendment permits a warrantless search of the area "'within [an arrestee's] immediate control'-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence").
45. see also Belton, 453 U.S. at 460 (extending Chimel to hold that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" (footnote omitted)).
46. Gant, 556 U.S. at 350 (criticizing Belton's assumption that articles inside a passenger compartment are typically "within the area into which an arrestee might reach" (internal quotation marks omitted)). The Gant dissenters would have reaffirmed Belton because of both the merits and stare decisis.
47. Id. at 358-65 (Alito, J., dissenting). Justice Breyer noted that he would have chosen a new rule had the case been one of first impression, but he did not think that the existing rule caused enough harm to justify overruling it.
48. Id. at 354-55 (Breyer, J., dissenting). In this regard, Justice Breyer apparently viewed the Belton rule as lying within the prior Court's discretion to adopt, even if he would have exercised that discretion differently.
49. This is the kind of situation in which Caleb Nelson has persuasively argued, by way of analogy to the "second step" of Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), that the presumption against overruling makes the most sense.
50. Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 7 (2001) ("Before we let current judges substitute their discretionary choices for the discretionary choices made by their predecessors, we may well want to require a 'special justification' (such as the proven unworkability of the prior judges' chosen rules)."). Cases representing discretionary choices are particularly well-suited to the application of stare decisis considerations like whether a precedent is workable, has been undermined by changed circumstances or subsequent case law, or would be costly to change.
51. See, e.g., Gant, 556 U.S. at 358 (Alito, J., dissenting) (identifying factors relevant to deciding whether to overrule).
52. Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 TEXAS L. REV. 1843, 1846 (2013).
53. See Richard H. Fallon, supra note 2, at 561 ("In practice, the demand that everyone should actually coalesce on a constitutional theory, and accept it as justifying constitutional outcomes, is too stringent to be realistic; reasonable disagreement is endemic to free societies." (citation omitted)). Fallon identifies a rough division between "text-based theories," which focus on the written Constitution, and "practice-based theories," which try to account for "a constitutional 'practice' in which judges sometimes decide cases based on considerations that go beyond the constitutional text."
54. Id. at 538. He draws another rough distinction between theories that "seek to identify substantive values that constitutional adjudication ought to advance" and formalist theories that prescribe interpretive methodology rather than values.
55. See, e.g., Sheryl Gay Stolberg, Kagan Promises 'Modest' Approach, N.Y. TIMES, June 28, 2010, http://www.nytimes.com/2010/06/29/us/politics/29kagan.html (describing Elena Kagan's judicial philosophy as a "core theme" of her confirmation hearings).
56. Compare McDonald v. City of Chi., 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring) ("I believe the original meaning of the Fourteenth Amendment offers a superior alternative [to the Court's atextual, ahistorical approach]").
57. with id. at 3117 (Stevens, J., dissenting) ("Even when historical analysis is focused on a discrete proposition, such as the original public meaning of the Second Amendment, the evidence often points in different directions.").
58. Compare INS v. Chadha, 462 U.S. 919, 959 (1983) (holding that the one-house veto violated the formal requirements of bicameralism and presentment).
59. with id. at 999 (White, J., dissenting) (insisting that the separation of powers doctrine is not only about form,but also about "accommodation and practicality").
60. Compare Michael H. v. Gerald D., 491 U.S. 110, 122-30 (1989) (plurality opinion) (emphasizing the centrality of history and tradition in identifying "fundamental rights" protected by the Due Process Clause).
61. with id. at 137-41 (Brennan, J., dissenting) (disputing the role of tradition in substantive due process decision making).
62. Compare Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (extensively considering international opinion regarding the execution of juveniles).
63. with id. at 622-28 (Scalia, J., dissenting) (vehemently objecting to the majority's reliance upon foreign law).
64. Compare also Lawrence v. Texas, 539 U.S. 558, 573, 576-77 (2003) (considering the views of foreign countries with respect to consensual homosexual conduct).
65. with id. at 598 (Scalia, J., dissenting) (maintaining that the laws of foreign countries are irrelevant to the interpretation of our Constitution and insisting that "'this Court ... should not impose foreign moods, fads, or fashions on Americans'".
66. citing Foster v. Florida, 537 U.S. 990, 990 n. (2002) (Thomas, J., concurring in denial of certiorari).
67. See, e.g., Justice William J. Brennan, Jr., Address at the Text and Teaching Symposium, Georgetown University: Constitutional Interpretation (Oct. 12, 1985), available at http://teachingamericanhistory.org/library/index.asp?document=2342. Describing his approach to constitutional interpretation, Justice Brennan said: We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time[?] For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.
68. See generally, e.g., Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012).
69. Antonin Scalia, supra note 18.
70. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005). Justices Breyer and Scalia have publicly debated their competing philosophies.
71. See, e.g., Stephen Breyer & Antonin Scalia, Remarks at the U.S. Association of Constitutional Law Discussion at American University Washington College of Law: Constitutional Relevance of Foreign Court Decisions (Jan. 13, 2005), available at http://www.freerepublic.com/focus/f-news/1352357/posts.
72. See, e.g., Earl Warren, The Law and the Future, FORTUNE, Nov. 1955, at 106, 224 ("[I]t is the spirit and not the form of law that keeps justice alive.").
73. See Randy Kozel, supra note 33 (describing how different approaches to interpretation can lead to different analyses of precedent and how these differences have led to dissonance in constitutional adjudication).
74. 539 U.S. 558 (2003).
75. 478 U.S. 186 (1986).
76. overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
77. Lawrence, 539 U.S. at 578.
78. Bowers, 478 U.S. at 192 (denying the existence of "a fundamental right ... to engage in acts of consensual sodomy" because "[p]roscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights" (citation omitted)).
79. id. at 193 n.6 (cataloging state criminal sodomy laws in existence when the Fourteenth Amendment was ratified).
80. On the former point, see Lawrence, 539 U.S. at 571 ("[T]he historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate.").
81. On the latter, see id. at 571-72 ("In all events we think that our laws and traditions in the past half century are of most relevance here '[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.'" (alteration in original)).
82. See id. at 598 (Scalia, J., dissenting) (asserting that "an 'emerging awareness' does not establish a 'fundamental right'"). The dissenters also objected to the majority's use of foreign law in determining current attitudes about homosexual conduct.
83. See id. ("Much less do [constitutional entitlements] spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct.").
84. My focus here is on jurisprudential rather than political disagreement. But see Saul Brenner & Harold J. Spaeth, STARE INDECISIS: THE ALTERATION OF PRECEDENT ON THE SUPREME COURT, 1946-1992, at 110 (1995) (contending that the choice to overturn precedent is driven by "the personal policy preferences" of the justices). I conceive of justices as being driven by first-order commitments to constitutional methods rather than solely by partisan political preference. To be sure, a justice's first-order jurisprudential commitments tend to break down along political lines, with conservative justices tending toward originalism and liberal justices tending toward a more evolutionary approach. That does not mean, however, that votes are driven by partisan political preferences for particular results rather than by different starting points on the nature of the Constitution.
85. Cf. Richard H. Fallon, Jr., Keynote Address, Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. REV. 1107, 1116-17 (2008) ("[A]lthough lawyers, judges, and law professors need to reckon with findings that Supreme Court Justices typically vote consistently with their ideological values in the contested cases on their docket, it does not follow that the Justices do not adhere to legal norms."). If one is cynical enough to think that votes are driven almost entirely by partisan preference, there is very little reason to give precedent significant weight-or, for that matter, to believe judicial review legitimate.
86. See infra notes 108-11 and accompanying text.
87. 543 U.S. 551 (2005).
88. 492 U.S. 361 (1989).
89. overruled by Roper v. Simmons, 543 U.S. 551 (2005).
90. Roper, 543 U.S. at 578-79.
91. See id. at 574 (asserting that Stanford incorrectly counted the number of states prohibiting juvenile capital punishment and explaining that while Stanford properly focused on attitudes in 1989, the proper focus for the Roper Court was attitudes in 2004).
92. 501 U.S. 808 (1991).
93. Id. at 827-30.
94. overruling Booth v. Maryland, 482 U.S. 496 (1987).
95. South Carolina v. Gathers, 490 U.S. 805 (1989)).
96. Id. at 819.
97. see also id. at 819-27 (discussing the use of victim impact evidence).
98. 515 U.S. 200 (1995).
99. 497 U.S. 547 (1990).
100. overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
101. Adarand, 515 U.S. at 227.
102. 367 U.S. 643 (1961).
103. 338 U.S. 25 (1949).
104. overruled by Mapp v. Ohio, 367 U.S. 643 (1961).
105. Compare Wolf, 338 U.S. at 27-28, 33 (holding that the right to privacy is implicit in the Fourteenth Amendment's concept of "ordered liberty," but refusing to hold the Fourth Amendment applicable to the states (internal quotation marks omitted)).
106. with Mapp, 367 U.S. at 657 (treating the applicability of the exclusionary rule to the states as "an essential part of both the Fourth and Fourteenth Amendments").
107. 517 U.S. 44 (1996).
108. 491 U.S. 1 (1989).
109. overruled by Seminole Tribe v. Florida, 517 U.S. 44 (1996).
110. See James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269, 1352-56 (1998) (describing the debate).
111. See Charles Evans Hughes, THE SUPREME COURT OF THE UNITED STATES: ITS FOUNDATION, METHODS AND ACHIEVEMENTS: AN INTERPRETATION 68 (1928) ("A dissent in a court of last resort is an appeal ... to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.").
112. see also, e.g., Scalia A, supra note 21, at 864 (expressing the hope that "at least some of [my] dissents will be majorities").
113. Ruth Bader Ginsburg, Remarks at the 20th Annual Leo and Berry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (Oct. 21, 2007), available at http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_10-21-07.html.
114. expressing the hope that a future majority of the Court will adopt her dissenting position in Gonzales v. Carhart, 550 U.S. 124 (2007).
115. Allison Orr Larsen calls this the practice of "perpetual dissent." See generally Allison Orr Larsen, Perpetual Dissents, 15 GEO. MASON L. REV. 447 (2008). The consistent dissent of Justices Brennan and Marshall to the death penalty is perhaps the best known, but by no means the only, example.
116. See id. at 451 (asserting that after the Court upheld the constitutionality of the death penalty, Justices Brennan and Marshall registered more than 2,100 dissents to that view).
117. see also, e.g., Tennard v. Dretke, 542 U.S. 274, 293 (2004) (Scalia, J., dissenting) ("I have previously expressed my view that this 'right' to unchanneled sentencer discretion has no basis in the Constitution. I have also said that the Court's decisions establishing this right do not deserve stare decisis effect." (citation omitted)).
118. McConnell v. FEC, 540 U.S. 93, 326 (2003) (Kennedy, J., concurring in part and dissenting in part)
119. "I dissented in Austin [v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990)], and continue to believe that the case represents an indefensible departure from our tradition of free and robust debate.").
120. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003) (Thomas, J., dissenting) ("I would affirm the judgment below because I continue to believe that the Constitution does not constrain the size of punitive damage awards." (internal quotation marks omitted)).
121. United States v. Morrison, 529 U.S. 598, 662 (2000) (Breyer, J., dissenting)
122. continuing to reject the interpretation of the Commerce Clause advanced in United States v. Lopez, 514 U.S. 549 (1995).
123. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 97 (2000) (Stevens, J., concurring in part and dissenting in part) ("Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent.").
124. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 699 (1999) (Breyer, J., dissenting) ("I am not yet ready to adhere to the proposition of law set forth in Seminole Tribe.").
125. Shaw v. Hunt, 517 U.S. 899, 918 (1996) (Stevens, J., dissenting) ("As I have explained on prior occasions, I am convinced that the Court's aggressive supervision of state action designed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided.").
126. William Cranch praised the connection between stare decisis, opinion writing, and accountability in the preface to his Supreme Court reports, where he observed that a judge "can not decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public." William Cranch, Preface to 5 U.S. (1 Cranch) iii, iii-iv.
127. see also Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 664 (1999).
128. citing William Cranch, supra at iii). In this regard, deference to precedent encourages both humility and respect for other justices.
129. Cf. Gerhardt MJ, supra note 4, at 1295 (asserting that "fidelity to precedent generally ... constitutes an indispensable feature of 'judicial modesty' ... that calls upon Justices and judges to be respectful of the opinions of others to the fullest extent possible and not to decide more than is required in any given case").
130. See Payne v. Tennessee, 501 U.S. 808, 848-49 (1991) (Marshall, J., dissenting) (stating that the Supreme Court has "never departed from precedent without 'special justification'").
131. See Dickerson v. United States, 530 U.S. 428, 443 (2000) ("Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.").
132. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865 (1992) ("But even when justification [for overruling precedent] is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute.").
133. see also Arizona v. Gant, 556 U.S. 332, 354-55 (2009) (Breyer, J., dissenting) (observing that while he would "look for a better rule" than that established by precedent if the case were "one of first impression," stare decisis counseled the Court to stay the course).
134. See Barrett AC, supra note 3, at 1018-19 (emphasizing that even if a court has the authority to overrule precedent, it will not do so absent "special justification," which requires more than a mere showing that the prior case is erroneous (internal quotation marks omitted)).
135. See Sanford Levinson, Law as Literature, 60 TEXAS L. REV. 373, 386 (1982) (describing competing ways of understanding the Constitution as "the result of a genuine plurality of ways of seeing the world, rather than of the obdurate recalcitrance of those who refuse to bend to superior argument").
136. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (referring to the Court's duty "to say what the law is").
137. See infra notes 117 & 124-26 and accompanying text.
138. Roe v. Wade, 410 U.S. 113, 164 (1973).
139. United States v. Lopez, 514 U.S. 549, 567 (1995).
140. Cf. Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955) ("[I]t should go without saying that the vitality of the[] constitutional principles.
141. announced in Brown v. Board of Education, 347 U.S. 483 (1954)] cannot be allowed to yield simply because of disagreement with them.").
142. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 378 (2007). This is consistent with Michael Gerhardt's observation that reversals of constitutional precedent are concentrated in a few areas: [T]he areas in which the Court has overruled itself six or more times are criminal procedure (forty), Fourteenth Amendment Due Process Clause (nineteen), the Commerce Clause (eighteen), Fourteenth Amendment Equal Protection Clause (eight), Eleventh Amendment (seven), Article I other than Commerce Clause (six), and freedom of expression or speech (six). The Court has overruled itself fewer than six times in other areas of constitutional law.
143. Gerhardt MJ, supra note 4, at 1282 (footnote omitted).
144. Nelson C, supra note 32, at 50. "Demonstrably erroneous" is the standard that Nelson would apply to the determination of whether precedent should be overruled.
145. See generally id.
146. Cf. The Nomination of Elena Kagan to be An Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 89 (2010), available at http://www.gpo.gov/fdsys/pkg/CHRG-111shrg67622/html/CHRG-111shrg67622.htm ("I think in general judges should look to a variety of sources when they interpret the Constitution, and which take precedence in a particular case is really a kind of case-by-case thing.").
147. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 159 (2005) ("I have said I do not have an overarching judicial philosophy that I bring to every case, and I think that's true.").
148. Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. REV. 25, 33 (1994).
149. Michael J. Gerhardt, supra note 17, at 12. Gerhardt gives the following statistics for the average number of times a Justice called for the overruling of precedent per year during this period: "2.07 for Justice Thomas, 1.84 for Justice Scalia, 1.74 for Chief Justice Rehnquist, 1.78 for Justice Kennedy, 1.75 for Justice O'Connor, 1.45 for Justice Stevens, 1.4 for Justice Souter, 1.27 for Justice Breyer, and 1.0 for Justice Ginsburg."
150. Id. at 13.
151. See supra note 85.
152. See supra notes 45-70 and accompanying text.
153. See supra notes 22-24 and accompanying text.
154. See Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.").
155. See Solorio v. United States, 483 U.S. 435, 466 (1987) (Marshall, J., dissenting) ("[B]edrock principles are founded in the law rather than in the proclivities of individuals.".
156. quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986).
157. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970) (suggesting that stare decisis preserves the perception of "the judiciary as a source of impersonal and reasoned judgments").
158. see also Suzanna Sherry, The Eleventh Amendment and Stare Decisis: Overruling Hans v. Louisiana, 57 U. CHI. L. REV. 1260, 1262-63 (1990) (arguing that strong precedent rules are justified because they protect the Court's institutional legitimacy).
159. See Mitchell v. W.T. Grant Co., 416 U.S. 600, 636 (1974) (Stewart, J., dissenting) (arguing that "[a] basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government" and contending that "[n]o misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve").
160. Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting) (contending that the Court's institutional strength is weakened when it views its decisions as little more than a "restricted railroad ticket, good for this day and train only").
161. Earl M. Maltz, Commentary, Some Thoughts on the Death of Stare Decisis in Constitutional Law, l980 WIS. L. REV. 467, 484 (1980) (insisting that adhering to precedent is necessary because the public will not accept the Supreme Court's authority unless it believes that "in each case the majority of the Court is speaking for the Constitution itself rather than simply for five or more lawyers in black robes").
162. Monaghan H, supra note 24, at 753 n.170 (describing Judge Posner's opinion that "a general failure to adhere to precedent in constitutional cases would weaken the legitimacy of the federal judiciary by weakening the popular acceptance of judicial decisions").
163. See Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 WASH. & LEE L. REV. 281, 288 (1990) ("[E]limination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is.").
164. See Payne, 501 U.S. at 844-45 (Marshall, J., dissenting) (lamenting that "[p]ower, not reason, is the new currency" of the majority that believes "itself free to discard any principle of constitutional liberty" that it has the votes to overrule).
165. See, e.g., id. at 834 (Scalia, J., concurring) (arguing that "the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes" undermines the Court's legitimacy).
166. Flood v. Kuhn, 407 U.S. 258, 293 n.4 (1972) (Marshall, J., dissenting) (contending that "[t]he jurist concerned with 'public confidence in, and acceptance of the judicial system' might well consider that, however admirable its resolute adherence to [precedent], a decision contrary to the public sense of justice as it is, operates ... to diminish respect for the courts".
167. quoting Peter L. Szanton, Stare Decisis: A Dissenting View, 10 HASTINGS L.J. 394, 397 (1959).
168. see also John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 NW. U. L. REV. 803, 834 n.114 (2009) (arguing that the "institutional legitimacy" rationale "is troubling because it suggests that hiding and perpetuating errors is superior to acknowledging and correcting them").
169. Nelson C, supra note 32, at 72-73 ("[T]he legitimacy argument may well strike [some] as a giant ruse: It concedes that the public's acceptance of court decisions rests on the idea that judges act like scientists rather than politicians, but it tells courts to act like politicians in order to preserve that idea.").
170. Akhil Reed Amar, On Text and Precedent, 31 HARV. J.L. & PUB. POL'Y 961, 967 (2008).
171. Consider just a few of the well-known fluctuations in the Court's constitutional case law. The Court has flipped twice on the question whether Congress can regulate state governments with respect to prescribing wage and hour limitations for state employees. Compare Maryland v. Wirtz, 392 U.S. 183, 201 (1968).
172. with Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985).
173. Nat'l League of Cities v. Usery, 426 U.S. 833, 840 (1976).
174. The Court has also changed course on the question of incorporation, compare Adamson v. California, 332 U.S. 46, 51 (1947).
175. Palko v. Connecticut, 302 U.S. 319, 323 (1937).
176. with Mapp v. Ohio, 367 U.S. 643, 654-55 (1961).
177. the protection given by the Free Exercise Clause, compare Sherbert v. Verner, 374 U.S. 398, 410 (1963).
178. with Emp't Div., Dep't of Human Res. of State of Or. v. Smith, 485 U.S. 660, 672 (1988).
179. the scope of the Commerce Clause, compare Adkins v. Children's Hosp. of D.C., 261 U.S. 525, 561-62 (1923).
180. Lochner v. New York, 198 U.S. 45, 58 (1905).
181. with W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 398-400 (1937).
182. the lawfulness of segregation, compare Plessy v. Ferguson, 163 U.S. 537, 552 (1896).
183. with Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954).
184. the freedom of corporations to engage in political speech, compare McConnell v. FEC, 540 U.S. 93, 170 (2003).
185. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 655 (1990).
186. with Citizens United v. FEC, 558 U.S. 310, 319, 365-66 (2010).
187. See Supreme Court: Gallup Historical Trends, GALLUP, http://www.gallup.com/poll/4732/supreme-court.aspx (showing that a majority of Americans have approved of the way the Supreme Court has handled its job in the past decade).
188. See, e.g., Monaghan H, supra note 24, at 761 (describing how elites in the 1950s believed that the Court should end segregation despite stare decisis principles).
189. Doug Kendall, Citizens United, President Obama, and His Liberal Naysayers, HUFFINGTON POST (Nov. 2, 2012, 10:04 AM), http://www.huffingtonpost.com/doug-kendall/citizens-united-president_b_2064049.html (describing President Obama's hope that the Supreme Court will overrule Citizens United and his support for a constitutional amendment overruling the case if the Court does not).
190. See Payne v. Tennessee, 501 U.S. 808, 853 (1991) ("[T]his Court can legitimately lay claim to compliance with its directives only if the public understands the Court to be implementing 'principles ... founded in the law rather than in the proclivities of individuals.'".
191. quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986).
192. see also Monaghan H, supra note 24, at 752 (arguing that adhering to contested precedent "demonstrate[s]-at least to elites-the continuing legitimacy of judicial review" by sending the message that "the law is impersonal in character").
193. See Abby Livingston & Mark Murray, Context of Obama's 'Empathy' Remark, FIRST READ, NBC NEWS.COM (May 1, 2009, 4:58 PM), http://firstread.nbcnews.com/_news/2009/05/01/4430634-context-of-obamas-empathy-remark (reporting on President Obama's commitment to appoint Supreme Court justices who interpret the Constitution in favor of the powerless rather than in a "cramped and narrow way").
194. Jeffrey Rosen, Can Bush Deliver a Conservative Court?, N.Y. TIMES, Nov. 14, 2004, http://www.nytimes.com/2004/11/14/weekinreview/14jeff.html (reporting on President Bush's pledge to appoint Supreme Court justices who would be "strict constructionists").
195. See Jamal Greene et al., Profiling Originalism, 111 COLUM. L. REV. 356, 414 (2011) (describing "the collapsing wall between methodological and popular discourse").
196. While originalists are best known for making this point, see, e.g., Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 27-28 (1994), nonoriginalists too express fidelity to their best understanding of the Constitution when they choose to overrule precedent.
197. see, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 895 (1996) (arguing that "[i]f one is quite confident that a practice is wrong-or if one believes, even with less certainty, that it is terribly wrong-this conception of traditionalism permits the practice to be eroded or even discarded").
198. Cf. Kozel R, supra note 33, at 1862 (observing that "[e]xcessive deference to flawed constitutional precedents can ... create systemic concerns for the rule of law" insofar as "society is forced to endure pervasive misapplications of its most important document").
199. Id. at 1857 (asserting that "adherence to precedent advances the rule of law ... by fostering a sense of uniformity, consistency, and reliability").
200. See Gerhardt M, supra note 4, at 1282 (arguing from statistics that most of constitutional law is stable because, historically, reversals have been concentrated in a few areas of doctrine).
201. By way of contrast, imagine if the Court began deciding all cases without opinion. It is very unlikely that opinion writing is constitutionally required. The early Court did not always issue opinions, and when it did, it often issued them seriatim rather than as a majority. See Lee TR, supra note 71, at 670 n.117 (describing John Marshall's "rejection of 'the custom of the delivery of opinions by the Justices seriatim,' in favor of the new practice of 'announcing, himself, the views of that tribunal'".
202. quoting 3 Albert J. Beveridge, THE LIFE OF JOHN MARSHALL: CONFLICT AND CONSTRUCTION 1800-1815, at 16 (1919))). Opinion writing is such an entrenched practice, however, that the legal community would likely view its elimination as illegitimate, even if not unconstitutional.
203. See, e.g., Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting) ("Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.").
204. Saul Brenner & Harold J. Spaeth, supra note 51, at 110 (contending that the changed membership of the Court explains reversals, for the choice to overturn precedent is driven by the "personal policy preferences" of the justices).
205. cf. CARDOZO BN, supra note 14, at 150 (arguing that a court's changed composition should not occasion changed precedent).
206. See infra note 128 and accompanying text.
207. See supra notes 92-94 and accompanying text.
208. See supra notes 71-73 and accompanying text.
209. See, e.g., Payne, 501 U.S. at 827 ("Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." (second emphasis added)).
210. See id. at 828 (arguing that stare decisis should have the most force in cases in which reliance interests are particularly strong).
211. Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting).
212. See supra note 6. To be sure, some may argue that a lower court judge should be free to follow her best judgment about what the Constitution requires rather than a Supreme Court opinion in conflict with that judgment. The federal judicial hierarchy and the Supreme Court's authority to review state court judgments make this a different question than the one posed by a Supreme Court justice confronted with her Court's own precedent.
213. See generally Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817 (1994) (offering constitutional and prudential rationales to justify the system of judicial hierarchy). For present purposes, it suffices to make the descriptive observation that federal and state judges do not consider themselves free to depart from Supreme Court precedent and that vertical stare decisis thus serves as a stabilizing force.
214. U.S. CONST. art. III, § 2.
215. For a discussion of the foundations of the rule against advisory opinions, see generally Jonathan R. Siegel, A Theory of Justiciability, 86 TEXAS L. REV. 73, 129-30 (2007).
216. Henry Monaghan identifies the constitutionality of remittitur practice as an example of an issue that is off the Court's agenda because it is one "about which there is no current interest." Monaghan H, supra note 24, at 746 n.133.
217. Monaghan identifies horizontal stare decisis as the force keeping such issues off the Court's agenda. Id. at 744. I tend to agree with Max Radin, however, that it is "estoppel or the force of custom" rather than the force of stare decisis that performs this agenda-limiting function.
218. See id. at 757 & n.189 (internal quotation marks omitted) (describing Radin's position and noting that "[o]n this view, Radin would certainly deny that my agendalimitation illustrations are examples of stare decisis at all" (citation omitted)). Once the legal system widely acquiesces in a holding, reliance interests give it a force that derives from something other than the Court's relatively weak commitment not to depart from its precedents.
219. See infra notes 129-48 and accompanying text.
220. See GERHARDT MJ, supra note 17, at 45 ("[I]n the certiorari process, the justices often demonstrate their desire to adhere to or accept precedents they might not have decided the same way in the first place.").
221. See SUP. CT. R. 10(a) (identifying conflict between federal courts of appeals as a reason for granting certiorari).
222. id. R. 10(b) (identifying conflict between state courts of last resort or between state courts of last resort and a United States court of appeals as a reason for granting certiorari). The Court is also willing to grant certiorari when the issue is "an important question of federal law that has not been, but should be, settled by this Court," or when a lower court "has decided an important federal question in a way that conflicts with relevant decisions of this Court."
223. Id. R. 10(c). The Court rarely takes a case seeking only the correction of an error below.
224. Id. R. 10. In addition to the above guidelines, the Court will not take a case that has jurisdictional or factual quirks that would complicate the Court's consideration of the merits.
225. See Stephen M. Shapiro, Certiorari Practice: The Supreme Court's Shrinking Docket, APPELLATE.NET (1999), http://www.appellate.net/articles/certpractice.asp (noting that the Court screens out cases containing issues that might prevent a clean ruling on the merits of a cert-worthy question). The need to wait for the right case is a further limitation upon the Court's ability to revisit precedent.
226. Some have stressed stare decisis's role in "conserving and perpetuating shared values" as a virtue of the doctrine. Monaghan H, supra note 24, at 751.
227. see also Merrill TW, supra note 22, at 981 (maintaining that "a strong theory of precedent in constitutional law ... would reduce the prospects for change through constitutional interpretation").
228. But see Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke, 57 ALA. L. REV. 635, 637 (2006) (observing that while self-professed Burkeans argue in favor of retaining precedent as a means of preserving tradition, "there is actually a well-established Burkean practice and tradition of venerating the text and first principles of the Constitution and of appealing to it to trump both contrary caselaw and contrary practices and traditions"). It is undoubtedly true that the large body of precedent that is never disturbed contributes to this aim. But the kinds of cases that the Court reverses are often ones implicating values on which society is divided.
229. See supra note 81 and accompanying text.
230. See Caminker EH, supra note 115, at 824-25 (outlining the duty of lower courts to obey precedents of those courts that have "revisory jurisdiction" over them).
231. See Neil Duxbury, THE NATURE AND AUTHORITY OF PRECEDENT 16 (2008) ("Where judges do not wish to follow a precedent it is commonly assumed that they will either distinguish the precedent from the present case or overrule the precedent on the basis of an especially compelling reason or set of reasons.").
232. While not a constitutional case, Pearson v. Callahan, 555 U.S. 223 (2009), illustrates well the way in which dissatisfaction below can prompt overruling above.
233. The Court observed that "[l]ower court judges ... have not been reticent in their criticism of [Saucier v. Katz, 533 U.S. 194 (2001)]" and that "application of the rule has not always been enthusiastic."
234. Id. at 234. That fact, combined with separate opinions in other cases from members of the Court, spurred reconsideration, and ultimately reversal, of the Court's holding in that case.
235. Id. at 235-36.
236. see also, e.g., Arizona v. Gant, 556 U.S. 332, 338 (2009).
237. "The chorus that has called for us to revisit [New York v. Belton, 453 U.S. 454 (1981)] includes courts, scholars, and Members of this Court who have questioned that decision's clarity and its fidelity to Fourth Amendment principles.").
238. Gregg v. Georgia, 428 U.S. 153 (1976), also illustrates this phenomenon.
239. After Furman v. Georgia, 408 U.S. 238 (1972), held unconstitutional all of the death penalty statutes before the Court in that case, "at least 35 States ... enacted new statutes that provide[d] for the death penalty for at least some crimes."
240. Gregg, 428 U.S. at 179-80 (plurality opinion). Reviewing one of these statutes in Gregg, the Court retreated from Furman and permitted the death penalty when safeguards were present.
241. Id. at 206-07. Pushback from the states caused the Court to change course, even though it did not overrule Furman outright.
242. See id. at 180-81, 186-87 (finding important that "capital punishment itself has not been rejected by the elected representatives of the people" and invoking "[c]onsiderations of federalism" in deciding that capital punishment is not per se unconstitutional).
243. See SUP. CT. R. 14.1(a) ("Only the questions set out in the petition, or fairly included therein, will be considered by the Court."). The certiorari petition thus generally gives the Court notice of what it is getting into.
244. See, e.g., Citizens United v. FEC, 558 U.S. 310, 376-77 (2010) (Roberts, C.J., concurring) (asserting that the Court had not considered whether to overrule precedent in other corporate speech cases because "[n]ot a single party in any of those cases asked us to ..., and as the dissent points out, the Court generally does not consider constitutional arguments that have not properly been raised" (citation omitted)).
245. Lawrence v. Texas, 539 U.S. 558, 564 (2003).
246. noting that the petition granted had expressly sought the overruling of Bowers v. Hardwick, 478 U.S. 186 (1986).
247. To be sure, the request is not always express in the petition for certiorari, for the Court considers itself free to entertain issues "fairly included" within the questions presented in the petition. See Eugene Gressman et al., SUPREME COURT PRACTICE 456-58 (9th ed. 2007) (describing circumstances in which the Court has deemed questions "fairly included" with those on which it granted certiorari).
248. See, e.g., Montejo v. Louisiana, 556 U.S. 778, 792, 797 (2009).
249. overruling Michigan v. Jackson, 475 U.S. 625 (1986) after calling for supplemental briefing on the question whether it should be overruled).
250. Payne v. Tennessee, 498 U.S. 1076 (1991) (ordering supplemental briefing on the question whether two controlling precedents should be overruled).
251. This practice has been sharply criticized. See, e.g., Citizens United, 558 U.S. at 396 (Stevens, J., dissenting) (asserting that ordering the parties to address whether precedent should be overruled is "unusual and inadvisable for a court").
252. The Court has also occasionally reconsidered precedent without even asking the parties to argue the point, a practice which is also criticized. See, e.g., Mapp v. Ohio, 367 U.S. 643, 673-74 (1961) (Harlan, J., dissenting) (criticizing the Court for having "reached out" to decide whether to overrule precedent when the issue was neither raised nor briefed by the parties (internal quotation marks omitted)).
253. The number of justices required to order briefing or reargument on a question not raised by the parties appears to be a question of internal practice, for it is not addressed in the Supreme Court Rules. Given that the practice is controversial and has been done over dissent, it is unlikely that it can be done without the support of at least five justices. See supra note 125.
254. See Joan Maisel Leiman, The Rule of Four, 57 COLUM. L. REV. 975, 981 (1957) (discussing the origins of the "rule of four," which requires four votes to grant certiorari).
255. Michael J. Gerhardt, supra note 17, at 11.
256. See generally Michael J. Gerhardt, Super Precedent, 90 MINN. L. REV. 1204 (2006) (identifying the origin of the term superprecedent and the role of such decisions in the Senate judicial confirmation process). The term was popularized by Senator Arlen Specter, who asked John Roberts during his confirmation hearing whether he agreed that there were "super-duper precedents" in constitutional law.
257. Id. at 1204 (internal quotation marks omitted).
258. Other commentators have debated the strength of superprecedent. Compare Fallon RH, supra note 51, at 1116 ("[T]he claim that there are superprecedents immune from judicial overruling seems basically correct.").
259. Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MINN. L. REV. 1173, 1180-82 (2006) (endorsing the proposition that some bedrock precedents are so entrenched that they cannot be overruled).
260. with Barnett RE, supra note 21, at 1233 (arguing that no case should be immune from overruling if it conflicts with the Constitution's text).
261. See Gerhardt MJ, supra note 129, at 1221 ("Super precedent is a construct employed to signify the relatively rare times when it makes eminent sense to recognize that the correctness of a decision is a secondary (or far less important) consideration than its permanence.").
262. Gerhardt MJ, supra note 4, at 1293.
263. Cf. John O. McGinnis & Michael B. Rappaport, supra note 95, at 836-37 (arguing that an originalist should follow nonoriginalist precedent rather than overrule it when, inter alia, the costs of overruling would be borderline catastrophic-as they would be with respect to paper money-or when the principles would be supported by constitutional amendment in the absence of the cases-as they would be with respect to race and gender discrimination).
264. See, e.g., Gerhardt MJ, supra note 129, at 1208-11, 1213-16 (identifying several "superprecedent" cases).
265. Farber DA, supra note 129, at 1180 (citing New Deal-economic and twentiethcentury Bill of Rights-incorporation cases as examples of "bedrock precedents").
266. 5 U.S. (1 Cranch) 137 (1803) (holding constitutional the exercise of judicial review).
267. 14 U.S. (1 Wheat.) 304 (1816) (holding constitutional the exercise of Supreme Court review of state court judgments).
268. 301 U.S. 619 (1937) (holding constitutional the Social Security Act).
269. Knox v. Lee, 79 U.S. (12 Wall.) 457 (1870) (holding constitutional the issuance of paper money).
270. 367 U.S. 643 (1961) (holding the Fourth Amendment incorporated against the states through the Fourteenth Amendment).
271. 347 U.S. 483 (1954) (holding that the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools).
272. 109 U.S. 3 (1883) (holding the Fourteenth Amendment applicable only to state action).
273. 505 U.S. 833 (1992).
274. In an op-ed in The New York Times, Senator Specter characterized Roe v. Wade as a superprecedent.
275. Arlen Specter, Op-Ed., Bringing the Hearings to Order, N.Y. TIMES, July 24, 2005, http://www.nytimes.com/2005/07/24/opinion/24specter.html. Scholars, however, do not put Roe on the superprecedent list because the public controversy about Roe has never abated.
276. See, e.g., Fallon RH, supra note 51, at 1116 ("[A] decision as fiercely and enduringly contested as Roe v. Wade has acquired no immunity from serious judicial reconsideration, even if arguments for overruling it ought not succeed.").
277. Gerhardt MJ, supra note 129, at 1220 (asserting that Roe cannot be considered a superprecedent in part because calls for its demise by national political leaders have never retreated).
278. See supra notes 119-23 and accompanying text. 143.
279. See supra notes 124-26 and accompanying text.
280. Indeed, Justice Scalia has argued precisely the opposite. See SCALIA A, supra note 18, at 138-39 ("[O]riginalism will make a difference ... not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.").
281. Superprecedent is most often raised as a challenge to originalism. If many of the Court's foundational cases are inconsistent with the Constitution's original public meaning, the argument goes, originalism is unsustainable. See Gerhardt MJ, supra note 129, at 1224 ("Originalists ... have difficulty in developing a coherent, consistently applied theory of adjudication that allows them to adhere to originalism without producing instability, chaos, and havoc in constitutional law."). Originalists have resisted the premise of the challenge, at least in part.
282. See, e.g., Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947, 948-53, 962-71 (1995) (arguing that Brown v. Board of Education is consistent with the original meaning of the Fourteenth Amendment).
283. Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation?, 103 NW. U. L. REV. 857, 900-07 (2009) (arguing that Brown, the Legal Tender Cases, and cases validating the administrative state are consistent with an originalist understanding of the Constitution). To the extent any long-standing precedent is in fact inconsistent with the Constitution's meaning, some originalists have attempted to justify adhering to it, while others would let go of the precedent in favor of the text.
284. See supra note 21.
285. Sometimes a challenge may be to a new application of a foundational precedent rather than to the precedent itself. For example, an originalist may be deeply skeptical that the Due Process Clause protects substance as well as procedure, but the basic existence of substantive due process doctrine is no longer subject to challenge. The system requires the justice to respect that starting point; she cannot pick a fight that litigants (and other justices) have not. The justice may, however, respond by refusing to read that foundational precedent expansively, thereby simultaneously protecting reliance interests and the integrity of the Constitution on the question she has been asked to decide.
286. Cf. Gerhardt MJ, supra note 4, at 1294-95 ("The larger the constituency-the more public authorities who are persuaded to reconsider some question of constitutional law-the more public and social support there would be to allow a heretofore well-settled issue to be reopened.").
287. This is not to say that such a case should be overruled if public acceptance wanes and a challenge makes its way to the Court. See supra note 80 and accompanying text. It is simply to say that the case lacks the superprecedent status that immunizes it from overruling by removing it from the Court's docket.