U.S. Supreme Court justices have generally deferred to precedent, but there have been notable exceptions.
BY: DAVE ROOS
PUBLISHED: OCTOBER 11, 2022
Table of Contents
- Hammer v. Dagenhart
(1918)
- Minersville School
District v. Gobitis (1940)
- Plessy v. Ferguson (1896)
- Betts v. Brady (1942)
- Bowers v. Hardwick (1986)
- Austin v. Michigan
Chamber of Commerce (1990)
- Baker v. Nelson (1972)
- Roe v. Wade (1973) and
Planned Parenthood of Southeastern Pa. v. Casey (1992)
It’s
extremely rare for the U.S.
Supreme Court to overturn one of its own decisions. Of the more than
25,500 decisions handed down by the Supreme Court since its creation in 1789,
it has only reversed course 146 times, less than one-half of one percent.
That’s
because the legal concept of precedent has played such a central role in common
law systems for “at least 1,000 years,” says David Schultz, law
professor at the University of Minnesota Law School. “Precedent says that ‘like
cases should be decided alike.’ It appeals to our notions of justice and
fairness.”
Judges
tend to defer to precedent because it encourages uniformity, predictability and
consistency in the legal system, and historically the Supreme Court only
overturned decisions when the original solution proved “unworkable,” or when
the conditions on the ground had changed dramatically.
“Classically,
you didn’t overturn precedent just because you thought that a previous Supreme
Court got it wrong,” says Schultz, author of Constitutional
Precedent in U.S. Supreme Court Reasoning. But that
historic deference to precedent has decreased over the past century.
The
following are some of the most pivotal and high-profile Supreme Court cases
that were later overturned.
1. Hammer v. Dagenhart (1918)
Schultz
says that some of the first major reversals on the Supreme Court happened
during the New Deal period,
when Franklin
D. Roosevelt and Congress passed sweeping economic and social reforms.
One of those laws was the Fair Labor
Standards Act (1938), which outlawed child
labor nationwide. Prior to 1938, each state determined its own child
labor laws.
When
the Supreme Court heard Hammer v. Dagenhart in
1918, there was no nationwide ban on child labor, but there was a federal law
that prohibited the interstate shipment of goods produced by child labor. A
business owner in North Carolina sued the government because he wanted to
employ his 14-year-old son and that prevented him from shipping his products
over state lines.
In Hammer,
the justices ruled for the business owner, invalidating the federal law and
protecting North Carolina’s right to set its own child labor laws. “[Hammer
v Dagenhart] was a pretty notorious case out there in terms of precedent,”
says Shultz.
But
decades later, when the Supreme Court heard a very similar case, United States v. Darby (1941),
the justices openly questioned the rationale of the 1918 Court.
“The
distinction on which [the 1918] decision was rested… a distinction which was
novel when made and unsupported by any provision of the Constitution, has long
since been abandoned,” wrote Justice
Harlan Fiske Stone.
Why
did the Supreme Court change course?
“Some
of it was about Court personnel changing, some of it was about the Depression,
and some of it was about the 1936 election that produced a landslide for FDR,”
says Schultz. “The court got the message. The American people wanted more
federal intervention.”
2. Minersville School District v. Gobitis (1940)
FIRST-GRADE
STUDENTS IN BALTIMORE SAY THE PLEDGE OF ALLEGIANCE TO THE AMERICAN FLAG IN JUNE
1955. CREDIT: RICHARD STACKS/BALTIMORE SUN/TRIBUNE NEWS SERVICE VIA GETTY
IMAGES
In
1940, there was impassioned debate about whether the U.S. should join the fight
against Nazi
Germany. In this anxious atmosphere, the Supreme Court heard the case of
Lillian and William Gobitis, two children from Pennsylvania who were expelled
from school when they refused to salute
the flag. The Gobitis family were Jehovah’s Witnesses and their religion
prohibited it.
In an
8-1 ruling, the justices ruled 8-1 against the Gobitis family, saying that
"national cohesion" was "inferior to none in the hierarchy of
legal values," and that national unity was "the basis of national
security." Religious expression, in other words, took a back seat to
patriotism.
But
just two years later, after the U.S. was at war with both Germany and Japan,
the Supreme Court issued the opposite ruling in a nearly identical case.
In West Virginia State
Board of Education v. Barnette (1943), more Jehovah’s Witnesses
were expelled from school after they refused to salute the flag. But this time,
the justices ruled 6-3 for the family’s right to freely express their religious
beliefs.
“That’s
a pretty dramatic reversal,” says Schultz. “The court issued what was an
incredibly unpopular opinion during a war—that you can’t require people to
salute the flag. But it was also one of the most beautifully written opinions
I’ve ever read.”
Writing
for the majority, Justice Robert Jackson wrote,
“If there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion, or force citizens to
confess by word or act their faith therein.”
Schultz
wonders if the rapid about-face had something to do with the atrocities
committed by Germany based on religious persecution. “Maybe that’s
what shakes up the Court, the realization that we can’t be Nazi Germany.”
3. Plessy v. Ferguson (1896)
THE CHILDREN INVOLVED IN THE LANDMARK
CIVIL RIGHTS LAWSUIT BROWN V. BOARD OF EDUCATION, WHICH CHALLENGED THE LEGALITY
OF AMERICAN PUBLIC SCHOOL SEGREGATION.
In
terms of decisions that changed the landscape of American life, Brown
v. Board of Education of Topeka (1954) tops the
list. Brown famously overturned the 1896 case of Plessy v.
Ferguson, in which a very different Supreme Court blessed the segregationist
doctrine of “separate but equal” as constitutional.
When
the Court heard Brown, it was armed with decades of social sciences
research proving the damaging effects of segregation on Black schools and Black
students. In a unanimous decision, the justices ruled that the doctrine of
“separate but equal” was in clear violation of the Equal
Protection Clause of the 14th
Amendment.
“Whatever
may have been the extent of psychological knowledge at the time of Plessy
v. Ferguson, this finding is amply supported by modern authority,” wrote Chief Justice
Earl Warren in his landmark opinion. “Any language in Plessy
v. Ferguson contrary to this finding is rejected.”
4. Betts v. Brady (1942)
When
Smith Betts was arrested for robbery in Maryland, he didn’t have any money to
pay for a lawyer, so he asked the court to provide one. Under Maryland law,
criminal courts only had to provide counsel for “indigent” defendants in cases
of rape or murder, not robbery. Betts, forced to defend himself in court, lost
his trial and was sentenced to eight years in jail.
Betts
appealed to the Supreme Court that the 6th Amendment and the 14th Amendment
guaranteed him a right to a fair trial, and that Maryland’s decision not to
provide him with a defense lawyer was unconstitutional. The Court disagreed,
ruling 6-3 that there is no such “right” to counsel in all criminal cases.
Justice
Hugo Black was in the minority that sided with Betts, and in his dissenting
opinion in 1942 stated that defendants unable to pay for a lawyer are more
likely to be convicted even if they’re innocent, concluding that “[t]he right
to counsel in a criminal proceeding is ‘fundamental.’”
More
than 20 years later, Justice Black got a second chance to address the issue.
The facts of Gideon v. Wainwright (1963) were almost identical
to Betts with another indigent defendant denied counsel in a
robbery case. This time, the justices ruled unanimously that the constitutional
guarantee of a fair trial absolutely included the right to counsel for those
who couldn’t afford their own. Justice Black wrote the opinion, poking holes in
the reasoning of Betts:
“The
fact is that, in deciding as it did—that ‘appointment of counsel is not a
fundamental right, essential to a fair trial’—the Court in Betts v.
Brady made an abrupt break with its own well-considered precedents. In
returning to these old precedents… we but restore constitutional principles
established to achieve a fair system of justice.”
5. Bowers v. Hardwick (1986)
In the
early 1980s, several U.S. states criminalized homosexuality, making it a crime
for two men to have consensual sex in the privacy of their home. In Bowers
v. Hardwick (1986), a Georgia man challenged the constitutionality of
the state’s “anti-sodomy” law as violating his privacy and fundamental rights.
In a
5-4 decision, the Supreme Court ruled that
“[t]he Constitution does not confer a fundamental right upon homosexuals to
engage in sodomy,” and that precedents set by previous Supreme Court decisions
concerning marriage and family—like the 1967 case of Loving
v. Virginia, which invalidated state laws against interracial
marriage—had nothing to do with this case.
What’s
clear to Supreme Court observers like Schultz is that the justices in the early
1980s were influenced by the prevailing public opinions of their time, which
were not supportive of L.G.B.T.Q. rights.
“The
Court is supposed to be above politics and not affected by public opinion,”
says Schultz. “But given the fact that Court members are appointed by
presidents indirectly elected by the people, and confirmed by a Senate directly
elected by the people, it would be naive to think that the Court is completely
indifferent to public opinion.”
By the
2000s, both public opinion and the law had changed concerning gay rights. Most
states had repealed their anti-sodomy laws and other countries had come out in
support of gay
rights. When the Supreme Court heard Lawrence v. Texas in
2003, the justices returned a very different verdict.
“[Gay
and lesbian peoples’] right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention of the
government," wrote Justice
Anthony Kennedy. "The Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private life of the
individual.”
6. Austin v. Michigan Chamber of Commerce (1990)
IN A 2010 DECISION, THE SUPREME COURT
OVERTURNED PORTIONS OF THEIR PREVIOUS DECISIONS AND RULED THAT CAMPAIGN
DONATIONS AND POLITICAL ADVERTISING WERE FORMS OF FREE SPEECH.
The
Supreme Court has been asked several times to weigh in on the influence of
money in politics, and it has flip-flopped on the issue of whether corporations
should be allowed to endorse candidates just like individual citizens.
In
1990, the Court heard Austin
v. Michigan Chamber of Commerce, in which the Michigan Chamber of
Commerce, a nonprofit corporation, wanted to use money from its general funds
to support a candidate for state office. In that case, the justices ruled
against the Chamber of Commerce by upholding a Michigan law that prohibited
corporations from using their money to support or oppose political candidates.
Then,
in 2003, the Court heard McConnell
v. FEC (Federal Elections Commission) which challenged the
validity of the so-called McCain-Feingold bill. That bill, also known as the
Bipartisan Campaign Reform Act of 2002, put a ban on unrestricted “soft money”
contributions from corporations, and restrictions on political ads funded by
corporations within 60 days of an election.
Again,
the justices ruled against the corporations in McConnell, writing that the
government had a legitimate interest in preventing "both the actual
corruption threatened by large financial contributions and... the appearance of
corruption."
But
then came Citizens
United v. FEC (2010). In a controversial 5-4 decision, the
justices overturned portions of their previous decisions and ruled that
campaign donations and political advertising were forms of free speech, and the
government should not be in the business of censoring free speech, regardless
of who pays for it.
“When
Government seeks to use its full power, including the criminal law, to command
where a person may get his or her information or what distrusted source he or
she may not hear, it uses censorship to control thought. This is unlawful. The
First Amendment confirms the freedom to think for ourselves,” wrote Justice
Anthony Kennedy.
“Corporations,
like individuals, do not have monolithic views. On certain topics corporations
may possess valuable expertise, leaving them the best equipped to point out
errors or fallacies in speech of all sorts, including the speech of candidates
and elected officials.”
7. Baker v. Nelson (1972)
JAMES MICHAEL "MIKE"
MCCONNELL (AT LEFT) AND JACK BAKER (RIGHT) WERE TURNED AWAY WHEN THEY APPLIED
FOR A MARRIAGE LICENSE IN MINNEAPOLIS IN 1970. THEIR CASE WAS REJECTED BY THE
SUPREME COURT IN 1972. IN 2015, THE SUPREME COURT RULED IN FAVOR OF ANOTHER
COUPLE IN SUPPORT OF GAY MARRIAGE.
In
1970, Jack Baker and Michael McConnell applied for a marriage license in their
home city of Minneapolis but were turned away because they were a same-sex
couple. They appealed their case to the Minnesota Supreme Court, but were told that
marriage “is a union of man and woman,” an institution “as old as the book of
Genesis.”
So the
men appealed their case, Baker v. Nelson, all the way to the
Supreme Court, which rejected their argument for the legalization of same-sex
marriage in 1972 with a single-sentence order: “Appeal from Sup. Ct. Minn.
dismissed for want of a substantial federal question.”
Decades
passed, and slowly attitudes about same-sex marriage changed. In 2003,
Massachusetts became the first state to legalize same-sex marriage, followed by
California, New York, New Mexico and Oregon in 2004. Over the next decade, more
states legalized same-sex marriage while others passed constitutional
amendments “banning” the practice.
In
2015, the Supreme Court agreed to hear Obergefell v.
Hodges, which was brought by several same-sex couples who had been
denied marriage licenses by state bans in Ohio, Michigan, Kentucky and
Tennessee. Unlike 1972, when the Court saw no constitutional protections for
same-sex couples, the justices came to the opposite conclusion in Obergefell.
“The
Constitution promises liberty to all within its reach, a liberty that includes
certain specific rights that allow persons, within a lawful realm, to define
and express their identity,” wrote Justice
Anthony Kennedy. “The petitioners in these cases seek to find that liberty by
marrying someone of the same sex and having their marriages deemed lawful on
the same terms and conditions as marriages between persons of the opposite
sex.”
In
his dissent,
Justice Antonin Scalia called the decision “a threat to American democracy” and
insisted that matters like same-sex marriage should be decided by the voters in
individual states, and not “legislated” by the Supreme Court.
8. Roe v. Wade (1973) and Planned Parenthood of
Southeastern Pa. v. Casey (1992)
NORMA MCCORVEY, BETTER KNOWN AS JANE
ROE FROM THE 1973 SUPREME COURT DECISION, AND LAWYER GLORIA ALLRED RAISE THEIR
HANDS AT A RALLY HELD OUTSIDE THE SUPREME COURT AFTER ATTENDED THE OPENING
ARGUMENTS IN THE WEBSTER V. REPRODUCTIVE HEALTH SERVICES CASE, 1989.
There
are few issues in America as divisive and passionately argued as abortion,
pitting the “right to life” against a woman’s right to choose. The Supreme
Court has weighed in several times on this contentious topic, most recently in
2022 with a landmark verdict that overturned decades of “settled law” on
abortion rights.
In the
1973 case Roe v. Wade,
the justices ruled in an 8-2 decision that a woman’s right to abortion falls
within the “right to privacy” contained in the Due Process Clause of the 14th
Amendment. In its ruling, the court laid out different standards for first,
second and third-trimester pregnancies, allowing states to regulate abortion
once a fetus reaches “viability.”
In the
late 1980s, Pennsylvania and other states passed laws requiring women to get
“informed consent” from a husband or a parent (if a minor) before receiving an
abortion, and only after a 24-hour waiting period. Planned Parenthood sued,
arguing that the state laws unconstitutionally infringed on the rights
guaranteed by Roe.
In Planned Parenthood of
Southeastern Pennsylvania v. Casey (1992), the justices narrowly
affirmed Roe 5-4 but allowed many of the state restrictions to
stand. One of the main reasons why the Court didn’t strike down Roe entirely
in 1992 was the concept of stare decisis, that a court should
adhere to precedent in its decisions.
“Reliance
becomes a very important principle in Casey,” says Schultz.
“Justice Sandra
Day O'Connor writes that even if we thought that Roe was
wrongly decided, a generation of women have come of age relying upon Roe and
the ability to control their reproductive future.”
Then
came Dobbs v. Jackson
Women’s Health Organization (2022), in which the justices ruled
6-3 to overturn both Roe and Casey in a
decision that openly rejected the legal precedent set by the previous cases.
“Stare
decisis, the doctrine on which Casey’s controlling opinion was
based, does not compel unending adherence to Roe’s abuse of
judicial authority,” wrote Justice
Samuel Alito. “Roe was egregiously wrong from the start. Its
reasoning was exceptionally weak, and the decision has had damaging
consequences.”
Schultz
says that in the early 2020s, the Court’s approach to precedent signaled “a
pretty dramatic shift” from its historical stance. “It used to be all about
reliance, consistency and uniformity, where the current Court is much more
willing to say, ‘We think they were wrong and we’re going to reverse
it.’”
https://www.history.com/news/landmark-supreme-court-cases-overturned
Comments
The Supreme Court was destined to serving as a legislative
body until Trump appointed Originalists to the Court.
The history of Supreme Court decisions reflects the court’s
decisions as temporary and subject to reversal based on circumstances rooted in
poilical expediency. The court needs to refer changes in law to the Congress.
Norb Leahy Dunwoody GA Tes Paraty Leader
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