Predictability and stability in the law are essential to our democracy.  Each of us makes an untold number of decisions every day, consciously or subconsciously, with respect to what the law requires of us.  Drivers operate vehicles according to their understandings of what the law requires.  Businesses structure transactions according to what the law allows or disallows.  Law-abiding citizens conduct themselves to avoid running afoul of criminal statutes.  Imagine the chaos that would ensue if the rules defining what was legal and illegal changed without notice and with regularity.  Something that might be legal today, could become unlawful tomorrow.  Fortunately, that’s what the legal concept of stare decisis is designed to avoid.

Stare Decisis

Stare decisis is a Latin term that means “to stand by things decided.”  Our appellate courts adopted this concept of upholding prior court decisions so that predictability and stability might be brought to our day-to-day lives.  The doctrine has its roots in the English common law.  One of the fundamental philosophies supporting stare decisis is that it is more important that the applicable rule of law be settled than that it be settled correctly.  Thus, implicit in the doctrine is the idea that a court decision might be viewed as “wrong,” but to provide stability in the law, courts nevertheless will abide by the decision.  It is only when a decision reaches some threshold of being more than wrong, that the precedent is susceptible to being overturned.

Supreme Court History

To give some context to the importance that our court system places on upholding precedent, the U.S. Supreme Court historically has overturned fewer than two percent of its own rulings.  Between 2005, when John Roberts was appointed Chief Justice, and the end of the 2017-18 term, the high court overturned only four of the court’s precedents. 

But during the 2018-19 Supreme Court term, signs of a potential shift in the stability of the court’s precedent appeared.  The court overruled two of its precedents.  There was speculation that a third precedent was at risk.  And, there were calls from some members of the court to reexamine other precedents.  Even stare decisis’ stabilizing concept of sometimes retaining wrongly-decided precedent was called into question.

The threshold for evaluating whether to overturn any precedent begins with a determination that the prior decision was “wrong.”  Reasonable legal minds can certainly differ as to whether a particular decision was decided correctly, and thus one might expect that the appointment of a new member to the court would cause some shifts in views of the court as a whole.  But with the addition of Brett Cavanaugh to the Supreme Court in October of 2018, the expectation was that the court’s ideological majority had shifted more to a conservative view of the law such that the majority view on some legal issues may be different from existing precedent.  Even so, what remains to be seen is whether a newly-aligned majority translates into the destruction of those precedents.  As discussed, stare decisis recognizes that the mere fact that five members of the court might believe a prior decision was wrongly decided, does not necessarily mean that the precedent should be discarded.  Or does it?

Overruling Nevada v. Hall

In Franchise Tax Board v. Hyatt, 139 S. Ct. 1485 (May 13, 2019), Justice Thomas, writing for a 5-member (conservative) majority overruled Nevada v. Hall, 440 99 S. Ct. 1182 (1979)—a 40-year-old precedent that had held:  whether one State could be sued in the courts of a different State was a question of comity, such that it was up to the forum State to choose whether to grant its sister State immunity.  Justice Thomas’ legal analysis concluded that the “constitutional design” and the understanding of sovereign immunity shared by the States ratifying the Constitution compelled the conclusion that one State cannot be sued in the courts of another State.

Turning to whether stare decisis required continued adherence to Nevada v. Hall, Justice Thomas recited four factors drawn from the Court’s precedents—

  1. the quality of the prior decision’s reasoning,
  2. its consistency with related decisions,
  3. legal developments since the decision, and
  4. reliance on the decision. 

With little explanation, Justice Thomas wrote that the first three of these factors support the decision to overrule Hall, and thus, the majority overruled Hall.

Falling Dominoes?

Writing for the liberal wing of the court, Justice Breyer challenged Justice Thomas’ view of State sovereign immunity, arguing that the court correctly decided Nevada v. Hall.  Justice Breyer went on to argue that getting something wrong “cannot by itself justify scrapping settled precedent.”  He highlighted the fact that in the 40 years since Hall was decided, it appeared that only 14 cases had been filed in which one State had entertained a private citizen’s suit against another State in its courts.  He further cautioned the court to avoid the temptation to overrule cases merely because five members of the court believe it was wrongly decided.  Doing so, he wrote, results in legal instability, undermines the ability of ordinary citizens to plan their lives, and produces uncertainty about which cases the court will later overrule and which ones will endure.  Justice Breyer closed his opinion with a foreboding question that asked just how long it would be before the court overruled the next precedent.

One month after Hyatt was decided, Justice Thomas authored a concurring opinion in Gamble v. United States, in which he challenged the very underpinnings of the stare decisis doctrine.  He wrote, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”  Gamble v. United States, 139 S. Ct. 1960 (2019).  He argued that if a prior opinion is inconsistent with the U.S. Constitution, it must yield to the Constitution.  Thus, for Justice Thomas, it appears that for matters of constitutional interpretation, whether a precedent was overruled or not would depend simply on whether there were five votes for a particular constitutional interpretation.  This view is a departure from existing court precedent about when precedent will or will not be overturned.

The answer to Justice Breyer’s closing question in Hyatt about when the next precedent would be overruled came just 6 weeks later in Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 162 (June 21, 2019).  In Knick, a five-member (conservative) majority voted to overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).  The court had held in Williamson that a property owner whose property had been taken by a local government had not suffered a violation of his Fifth Amendment rights and could not bring a takings claim in federal court until a state court had first denied his claim for just compensation under state law.  Chief Justice Roberts, writing for the conservative majority, held that a Fifth Amendment takings claim arises at the time of the taking, regardless of what post-taking remedies might be available to the property owner.  Thus, he concluded that Williamson was wrongly decided.

Turning to the question of stare decisis, he acknowledged the concept that it may be more important that the rule of law be settled than that it be settled correctly.  But he wrote that stare decisis is “weakest when [the court] interpret[s] the Constitution.”  Roberts then turned to the same four factors Justice Thomas had referenced in Hyatt and proceeded to address each one and concluded that the factors weighed in favor of overruling Williamson.  Thus, the majority overruled Hyatt.

Justice Kagan wrote for the four dissenters.  She defended Williamson, arguing that a mere taking doesn’t trigger a Constitutional claim because the constitution requires that the taking must be one “without just compensation.”  Therefore, she argued that Williamson was correctly decided in that it required that a property owner first seek compensation through available state and local procedures.  Justice Kagan went on to argue that stare decisis demands that Williamson stay on the books because just having five justices decide that a precedent is wrong is not sufficient to overturn the precedent.  She asserted that “special justification” is necessary to overrule a precedent, and she asserted that such justification was not present.  She questioned each of the majority’s conclusions on the four stare decisis factors, and wrote that “[w]hat is left is simply the majority’s view that Williamson County was wrong.  She closed by emphasizing the value of stability in the law and, harkening to Justice Breyer’s closing remark in Hyatt, asked just how long it would be before the next precedent falls.

Chief Justice Roberts is known for his reverence for the Supreme Court’s place in history and his concern that the high court might be perceived as political or ideological.  Thus, it is noteworthy that he voted with the four liberal members of the court in reaching a five-member consensus in Kisor v. Wilkie, 139 S. Ct. 2400 (June 26, 2019).  The five-member majority in Kisor left in place another of the court’s challenged precedents, Auer v. Robbins, 519 U. S. 452 (1997).  The court had held in Auer that courts should defer to agency interpretations of the agency’s own regulations.  In his concurring opinion in Kisor, Roberts wrote that “[t]he Court cannot muster even five votes to say that Auer is lawful or wise.  Instead, a majority retains Auer only because of stare decisis.”  Thus, in Roberts’ view, Auer lives on as precedent only because a majority of the court believed the factors for overruling it did not support doing so. 

Given Roberts’ worries over public perception of the high court as political, one must wonder if Roberts’ vote in Kisor was shaped by those concerns.  The 2019-20 supreme court term is sure to put further court precedent under the legal microscope.  Time will tell as to whether stare decisis will continue to provide stability to the legal landscape and our daily lives or whether there could be an erosion of this doctrine.

By Published On: July 22, 2019Categories: AppellateTags:


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Mike Northrup is a Shareholder and Section Head of the Cowles and Thompson Appellate Practice Group. He practices in both the trial and appellate courts in cases involving personal injury, insurance issues, employment law, commercial disputes, and zoning disputes. He also provides litigation support to attorneys in other sections of the firm. Mike served as a briefing attorney for former Chief Justice Thomas R. Phillips, Texas Supreme Court, 1988-89. He has taught as an adjunct professor at Hastings College of Law and SMU Dedman School of Law. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization.