Can the Supreme Court Change Its Mind?
York Times, December 5, 2002
229 W. 43rd Street, New York, NY 10036
By Kenji Yoshino
NEW HAVEN—How does the United States Supreme Court
correct its mistakes? On Monday the court agreed to hear Lawrence v. Texas,
a case involving the conviction of two men for private consensual sexual
conduct under a Texas sodomy statute. In doing so, the court signaled its
willingness to reconsider the 1986 case of Bowers v. Hardwick, which
held that the constitutional right of privacy does not protect such conduct.
The current case thus raises interesting questions about when the Supreme
Court can overrule its own precedents.
Many believed the Bowers case to be wrong the day it was decided.
Two days after the decision was rendered, The New York Times called it
"a gratuitous and petty ruling." Protesters staged demonstrations
throughout the United States, including what was at the time the largest act
of civil disobedience ever at the Supreme Court. Even Justice Lewis Powell,
who cast the deciding vote in the 5-4 decision, admitted several years later
that he believed he made a mistake in joining the majority.
Assuming the Bowers case was wrongly decided, how should the court
respond? The American judicial system requires lower courts to follow Supreme
Court pronouncements even if they believe they are wrongly decided. Judge
Stephen Reinhardt, who serves on the United States Court of Appeals for the
Ninth Circuit, complied with the Bowers decision in a 1988 opinion—even
though he likened Bowers to Plessy v. Ferguson, the infamous
1896 case that upheld the constitutionality of "separate but equal"
accommodations on the basis of race.
The question then arises whether there are any practical constraints on the
capacity of the Supreme Court to overrule itself. Can the court overrule a
precedent simply because it believes the prior case to have been incorrectly
In a 1992 case, Planned Parenthood v. Casey, the court answered no,
stating that "a decision to overrule should rest on some special reason
over and above the belief that a prior case was wrongly decided." The
court went on to outline four factors to be considered in making the decision
to overrule itself: the workability of the rule, the extent to which the
public has relied on the rule, relevant changes in legal doctrine, and changes
in facts or perceptions of facts.
But these constraints are less relevant—and less restrictive—than they
appear. First, there is something puzzling about requiring more of the court
than a frank admission that it incorrectly interpreted the Constitution in a
prior case. No court can be infallible, and public confidence in the court
will not diminish if the court admits this fact.
Second, it is doubtful that the test described in the Casey case
will ever actually constrain the Supreme Court from overruling a case it finds
patently erroneous. In looking not just at whether facts have changed but
whether perceptions of facts have changed, this test arguably permits the
Supreme Court to overrule precedent whenever the justices come to see things
differently. Thus the court need not admit past mistakes explicitly. The Casey
test will be problematic if it constrains—and obfuscatory if it does not.
When Justice Powell admitted that he made a mistake in the Bowers
case, the man who argued and lost the case for the gay plaintiff reacted
generously. "I think it’s an admirable thing," observed Laurence
Tribe. "All of us make mistakes, and not all of us are willing to admit
It may be that it is easier for an individual to admit error than it is for
an institution. This reluctance to confess past mistakes is especially
pronounced in the judiciary, whose legitimacy and power depend on public trust
in its pronouncements. Yet it needn’t be so. While acknowledging the
importance of consistency, we can also ask whether the court’s authority
would be diminished through greater candor. The answer is no.
Americans know that fallible individuals cannot come together to form
infallible institutions. If the current Supreme Court agrees with Justice
Powell that the Bowers case was incorrectly decided, that should be
enough reason for it to say so.
- Kenji Yoshino is an associate professor at Yale Law School.
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