Intragenerational Constitutional Overruling
Powe, L. A., Jr., Notre Dame Law Review
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.
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. …