33 U. Tol. L. Rev. 581, *

Copyright (c) 2002 The University of Toledo

Toledo Law Review

Spring, 2002

 

NAME: Emery G. Lee III*

 

BIO:

 

* Assistant Professor of political science, Case Western Reserve University ; Ph.D., Vanderbilt (1996); J.D., Case Western Reserve University (2001). The author would like to acknowledge the comments of Jonathan Entin, Frances Lee, and Chris Maynard on previous versions of this article. A previous version of this article was presented at the 2001 annual meeting of the American Political Science Association.

 

SUMMARY:

... Writing for the Court, however, the Chief Justice argued in Dickerson that the Court could not overrule Miranda because it lacked a "special justification" for doing so. ... In analyzing Roe's "precedential force," the joint opinion stresses both the practical necessity of stare decisis and the necessity of the doctrine to "the very concept of the rule of law underlying our own Constitution." Stare decisis is "not an inexorable command," especially in constitutional cases, but, because of the "continuity over time" called for by the rule of law, the joint opinion explains: ... " Thus, it is relatively clear that, in considering whether there are reasons sufficient to justify overruling Roe, the Casey joint opinion employs the "special justification" approach outlined in previous cases. ... The Casey joint opinion concludes that there is no "special justification" or "reason" - beyond the belief of some members of the Court that the precedent was wrongly decided - to justify overruling Roe. ... Chief Justice Rehnquist, joined by Justices Scalia and Thomas, rejected the joint opinion's "special justification" approach as a "newly minted variation on stare decisis. ... As demonstrated above, the Casey joint opinion provides a lengthy exposition of the relationship between the rule of law and the requirement of a "special justification" for overruling constitutional precedents. ...

 

HIGHLIGHT:

 

While stare decisis is not an inexorable command, particularly when we are interpreting the Constitution, even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some special justification. 1

 

- Chief Justice William H. Rehnquist

 

 

We are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of formal error, this Court has never felt constrained to follow precedent. In constitutional questions , where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice , and this practice has continued to this day. 2

 

- Justice Stanley Reed

 

 

 

TEXT:

 [*581]

 

Introduction

 

IN Dickerson v. United States, 3 decided in the summer of 2000, the Supreme Court declined to overrule its landmark 1966 decision, Miranda v. Arizona. 4 This decision to reaffirm Miranda's "core ruling" 5 was somewhat surprising because the Court had chipped away at Miranda over the years to the point w here it was unclear what actually remained of the original decision. 6 It was well known that some members of the Court, particularly the Chief Justice, believed that the original Miranda decision rested on a flawed interpretation of the Constitution. 7 Writing for [*582] the Court, however, the Chief Justice argued in Dickerson that the Court could not overrule Miranda because it lacked a "special justification" for doing so. 8 Thus, even though some members of the Dickerson majority had doubts about the constitutional legitimacy of the original Miranda decision, the Court let it stand. 9

 

Despite the statement in Dickerson that "we have always required a departure from precedent to be supported by some "special justification,'" 10 even in constitutional cases, the Court has only recently adopted this approach to stare decisis in constitutional cases. In fact, my research has been unable to locate the term "special justification" used in this way before the 1984 ca se of Arizona v. Rumsey. 11 Far from a long-standing requirement, this "special justification" approach represents a break with the Court's historical approach to stare decisis in constitutional cases. Under that traditional approach, stare decisis was given little weight in cases involving constitutional interpretations. As Justice Reed observed in Smith v. Allwright, "when convinced of former error, this Court has never felt constrained to follow precedent." 12 In developing the "special justification" approach, the Court has changed its "overruling rhetoric" and, in the process, apparently increased the weight given considerations of stare decisis in constitutional cases.

 

A "special justification" is not just any sort of reason or justification f or overruling a precedent. Its "special" quality is that it requires more than the conviction that the challenged precedent was wrongly decided ("formal error "). 13 Thus, a Justice who is convinced, as a matter of principle, that the precedent was wrongly decided does not have a "special justification" for overruling it. Principled disagreement with the precedent is a reason for overruling, but it is not "special." In fact, what makes a "special justification" special is that it is based on something more than the belie f that the precedent was wrongly decided. Instead, under the "special justification" approach, the decision to overrule a precedent must be justified by the unworkability of the precedent, the subsequent development of case l aw, or changed facts and circumstances. The decision to overrule must be based on more than principled disagreement with the precedent; if members of the Court can only point to principled disagreement, then they should not overrule the challenged precedent. This is an extraordinary doctrinal development.

 

This article explores the evolution of this "special justification" approach to stare decisis in constitutional cases, from its first appearance in Rumsey to Dickerson. Although a number of scholars have noted this recent trend in th e Supreme Court's [*583] overruling rhetoric, 14 no comparable history of t he "special justification" approach to stare decisis exists. The development o f the "special justification" approach can be understood, in part, as a response by members of the Court to the increasingly politicized nature of the Court 's environment. Given the controversial nature of a number of the Court's precedents and changes in the Court's membership in the 1980s and early 199 0s, the Court faced the prospect of either overruling controversial precedents and being criticized as "political," perhaps losing legitimacy in the process, or upholding precedents that members of the Court believed had been wrongly decided. In response, members of the Court developed the "special justification" approach to deal with this situation.

 

I Stare Decisis, The Rule of Law, and the Constitution

 

The relationship between stare decisis in constitutional cases and the rule of law is often cited but rarely explained in any depth. Perhaps part of the reason for this is that any systematic account must include a third concept - judicial review. Thus, it is not enough to simply state that the rule of la w requires continuity in the law and that the law should not change simply because the personnel of the judiciary changes. Even in the case of judge-made, common law, if like cases are to be treated alike, in an impersonal fashion - which the rule of law requires - then stability in the law and some form of stare decisis are necessary. If actors plan and make decisions relying on prior judicial decisions, then the law must not change too frequently. 15 Judicial review raises a much greater difficulty - namely, the Supreme Court's role as authoritative interpreter of the Constitution. The Court's role in the constitutional system depends in large part on stability in the law. If the Constitution has a discernible meaning on an issue, which the Court authoritatively announces in Case A, then that meaning should not change in Case B simply because new Justices have replaced the old. 16 On the other h and, the Constitution itself should trump previous Courts' glosses on it - so that Justices should not defer to Case A when they become convinced that Case A was based on an incorrect interpretation of the Constitution. 17

 

 [*584] This has led some commentators to argue that the application of stare decisis in constitutional cases is actually unconstitutional. 18 Professor Lawson, for example, argues that, to the extent that "the Constitution has, at least in principle, an objectively ascertainable meaning" 19 on an issue, t he Court is obligated to follow that meaning, even if there are contrary precedents. This argument is based on the reasoning of Marbury v. Madison. 20 When Chief Justice Marshall wrote, "[it] is emphatically the province and duty of the judicial department to say what the law is," 21 he did not mean the law is what the judges say it is and nothing more. Instead, he meant something like: "The law is what the judges say it is, based on something more than t he aggregate of their individual wills and preferences - and that something mo re is the written constitution." Chief Justice Marshall's argument really has two parts. First, it assumes that judges are capable of interpreting the law, i .e., of saying what the law is. Second, because judges have this capability ("province"), then they have the "duty" to adhere to that law and not substitute their own preferences or will for it. Because the Court has justified judicial review in this way since Marbury, Professor Lawson argue s that the Court must adhere to the text's meaning when faced with its own prior erroneous interpretations. Thus, an unconstitutional Supreme Court precedent should be treated no differently from an unconstitutional statute or executive order: "if the Constitution says X and a prior judicial decision says Y, a court [including the Supreme Court] has not merely the power, but the obligation, to prefer the Constitution." 22

 

Similarly, Professor Amar has criticized the Court's approach to stare decisis in recent constitutional cases. In a recent article in the Harvard Law Review, Professor Amar asks, "should the Court generally feel permitted or bound to follow a past case even if it has been shown to reflect an erroneous understanding of the [*585] [Constitution]?" 23 Pointing to Planned Parenthood v. Casey, 24 he adds that "the Rehnquist Court has been moving, in fits and starts, in the direction of insulating even erroneous cases from plenary reconsideration." 25 Professor Amar rejects this insulation of precedent in favor of a "documentarian" approach to constitutional interpretation, which seeks to arrive at "the most plausible reading" of the Constitution's meaning through close study of constitutional text, enactment history, and structure. 26 In this approach, constitutional precedents may be given some weight - which Professor Amar calls "epistemic" weight 27 - but not the sort of weight such precedents appear to have been given in Casey and Dickerson. 28

 

Although Professor Amar's documentarian approach differs greatly from the originalism of Professor Lawson, it shares with originalism the principle that the jurist's (and scholar's) first obligation is faithfulness to the Constitution's meaning. This nearly universal desire to be faithful to the text and meaning of the Constitution recently led Professor Tribe to claim that "we are all originalists now." 29

 

The criticisms of Professors Amar, Lawson, and others point toward the Court's traditional approach to stare decisis in constitutional cases, which gives little weight to precedent. This view can be summarized as follows: In a jurisprudential system with a written constitution and judicial review, the rule of law requires adherence to constitutional meaning before continuity in the law. Stare decisis might serve as a pragmatic exception to this rule because, as Professor Monaghan has pointed out, "a significant portion of o ur constitutional order cannot reasonably be reconciled with original understanding." 30 Thus, where "return" to the constitutional text would require a "constitutional revolution," 31 members of the Court might (legitimately?) choose to stand by erroneous precedents because of what might be characterized as reliance interests. 32 However, the traditional approach holds that [*586] members of the Court are obligated to prefer the Constitution to wrongly decided precedents.

 

But how are Justices to determine that precedents were wrongly decided? The y must interpret the Constitution, of course. In doing so, members of the Court are obligated to prefer the Constitution to their own policy preferences when the two conflict. This, too, is part of the "duty" to say what the law is. If members of the Court were not capable of interpreting the law in some more or less objective manner, then judicial review would be indefensible - or, at least, not defensible under the logic of Marbury. As Professor Frickey observed, "judicial review is tolerable only to the extent that the Supreme Court operates as a disinterested decisionmaker, insulated as far as humanly possible from the personal predilections of the justices." 33

 

However, it is unclear how one can disentangle "the personal predilections of the justices" from individual Justices' approaches to constitutional interpretation. To say "what the law is," Justices must interpret the Constitution, and the traditional account requires that they do this in a disinterested and impersonal manner. Again, "what the law is" should not depend on who is saying "what the law is," but rather on what the law actually is, in some sense removed from "predilections" of individuals. Despite the efforts of Supreme Court Justices, law professors, and others to establish a single, uniformly adopted theory of constitutional interpretation, there are still many competing theories. 34 Thus, different Justices, applying different theories of constitutional interpretation, will reach different conclusions on constitutional issues. This is an inescapable and unchanging fact of life. There is no reason to think that Justices reach different conclusions merely for "political," as opposed to "principled," reasons. Indeed, it is impossible to distinguish between "political" and "principled" reasons in this context, because the "political" disagreement over the outcome of cases often arises from principled disagreement over how to interpret the Constitution.

 

Even if based in principle, however, such disagreements undermine the legitimacy of judicial review. The argument for judicial review rests on the ability o f Justices to interpret the written constitution definitively, "to say what t he law is." The inability of Justices to agree on "what the law is" undermines the legitimacy of the practice because it suggests that Justices are unable to do what judicial review [*587] requires them to do as a threshold matter. 35 Thus, principled disagreement with previous interpretations of the Constitution places Justices in a dilemma. Should a Justice, when confronting a precedent that he or she believes was wrongly decided, choose to overrule the precedent and, as a result, undermine the legitimacy of judicial review? Or should the Justice decide to reaffirm the erroneous precedent based on stare decisis and deviate from his or her duty to "say what the law is"?

 

The solution to this dilemma will depend, in many cases, on how much overruling the precedent will actually undermine the legitimacy of the Court and judicial review. This will depend, in turn, on the public salience of the challenged precedent. The overruling of an obscure precedent will rarely, if ever, undercut the legitimacy of judicial review. In other cases one can imagine, overruling an unpopular or widely criticized precedent might actually enhance the legitimacy of judicial review. In these situations, the hypothetical Justice will not really face an overruling dilemma at all. In other situations, the hypothetical Justice will squarely face the overruling dilemma, especially when the Court reconsiders well known precedents. In such situations, public attention will be focused on the Court as it rarely is.

 

The 1980s and early 1990s presented circumstances likely to force this overruling dilemma on the members of the Court. Presidents Reagan and Bush appointed five new conservative Justices to the Court - Justices O'Connor, Scalia, Kennedy, Souter, and Thomas. 36 Many Court watchers believed that a number of liberal precedents were threatened as a result of this membership turnover on the Court. 37 While not all of these precedents were well known , there was a very real danger that the Court would be perceived as political in overruling precedents under these circumstances. This would be the case no matter how principled the Court's explanations for its decisions were.

 

Several members of the Court responded to this pressure by developing, in f its and starts, a new approach to stare decisis in constitutional cases - the "special justification" approach. This approach to constitutional precedent s gives more weight to precedent than the traditional approach to stare decisis in constitutional cases. More importantly, this approach to stare decisis changes the subject, so to speak, in reconsidering constitutional precedent s. Rather than focusing on whether the challenged precedent was correctly decided, the "special justification" approach focuses on whether the Court has a justification for overruling, in addition to the conviction of a majority o f the members of the Court, that the constitutional precedent in question was wrongly decided. The ability to point to an additional "special justification" for overruling a constitutional precedent makes it possible for the Court t o claim that its decision is based in more than principled disagreement [*58 8] with the precedent. In theory, at least, such an additional reason or justification protects the Court from the accusation that it is acting politically.

 

II. Origins of the "Special Justification" Theory

 

A. Arizona v. Rumsey

 

The contemporary "special justification" approach to stare decisis can be t raced to just one case, Arizona v. Rumsey, decided in 1984. 38 Rumsey involved a double jeopardy challenge to a death sentence that had been imposed after t he lesser sentence initially imposed had been set aside on appeal. 39 The stat e supreme court had ruled that, under Bullington v. Missouri, 40 such a sentence constituted a double jeopardy violation. The Supreme Court, in an opinion written by Justice O'Connor, affirmed on that basis, rejecting the state's "invitation" to overrule Bullington:

 

 

Petitioner has invited the Court to overrule Bullington, decided only three years ago. We decline the invitation. Although adherence to precedent is

not rigidly required in constitutional cases, any departure from the doctrine o f stare decisis demands special justification. Petitioner has suggested no reason sufficient to warrant our taking the exceptional action of overruling Bullington. 41

 

Rumsey does not elaborate, however, on what reasons would be sufficient to constitute a "special justification." What exactly does "special justification" mean in this context? Although her opinion does not answer this question, Justice O'Connor cites two cases to support this requirement of a "special justification" - Swift & Co. v. Wickham 42 and Smith v. Allwright. 43 These cases provide some insight into what reasons are sufficient to justify overruling a precedent, although neither uses the "special justification" language.

 

At first glance, Swift appears particularly relevant to the Rumsey situation, because both cases involved three-year-old precedents. The Swift Court, however, overruled the newly minted precedent. 44 In Swift, a turkey producer sought to enjoin enforcement of state labeling provisions. The turkey producer claimed, among other things, that enforcement of the state labeling provisions had been pre-empted by federal regulation. 45 The issue in Swift was the propriety of empanelling a three-judge district court under 28 U.S.C. 2281 to hear the case. 46 In Kesler v. [*589] Department of Public Safety, 47 decided by a six-to-two margin in 1962, the Court had held that three-judge district courts were necessary under 2281 "only when the Supremacy Clause of the Federal Constitution is immediately drawn into question, but not when issues of federal or state statutory construction must first be decided even though the Supremacy Clause may ultimately be implicated." 48 The Swift district court had been unable to resolve just how much statutory construction was necessary to trigger the Kesler rule. 49 Rather than deciding the "elusive" question of just how much statutory interpretation in a case was enough to deprive the three-judge court of jurisdiction, the Supreme Court overruled Kesler in its entirety. 50 The Court cited the unworkability of the rule established in Kelser as the reason for overruling the precedent. The Court stated:

 

 

 

We believe that considerations of stare decisis should not deter us from this course. Unless inexorably commanded by statute, a procedural principle of t his importance should not be kept on the books in the name of stare decisis once it has proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great. For reasons given in this opinion, we have concluded that the Kesler doctrine in this area of 2281 is unsatisfactory, and that Kesler should be pro tanto overruled. The overruling of a six-to-two decision of such recent vintage, which was concurred in by two members of the majority in the present case, and the opinion in support of which was written by an acknowledged expert in the field of federal jurisdiction, demands full explication of our reasons. 51

 

Two points must be made about Swift. First, the Court did not treat Swift as a constitutional case but rather as a procedural and/or statutory case. Although the Supremacy Clause lurked in the background, the case did not involve a constitutional precedent in the same manner as Rumsey. To the extent that the requirement of a "special justification" is greater in a statutory case, then, Swift may not provide much guidance as to what reasons are sufficient to overrule a constitutional precedent. Second, the Swift Court did not state that a "special justification" is necessary for the overruling of any precedent. Instead, it stated only that a "full explication" of the Court's reasons is demanded when the Court overrules a recent decision decided by a large margin, in which members of the Court switch positions and in which the Court overrules a decision written by an "expert" in the relevant field. Swift, then, can hardly be taken to support a general rule that the Court must provide a "full explication" of its reasons for overruling a precedent; nor does it provide much support for Justice O'Connor's claim in Rumsey that "in constitutional cases, any departure from the doctrine of stare decisis demands special justification." 52

 

 [*590] Similarly, the other case cited by Justice O'Connor, Smith v. Allwright, does not clearly support the requirement of "special justification," either. Smith was an African-American resident of Harris County, Texas, who was barred from voting in the Democratic party's all-white primary because of h is race. 53 He sued the county election judges, including Allwright, seeking a declaratory judgment that the Texas Democratic party's exclusion of African Americans violated his Fifteenth Amendment right to vote. 54 The district court denied Smith's claim, and the court of appeals affirmed on the basis of the 1935 precedent, Grovey v. Townshend. 55 Grovey had held that the exclusion of African Americans from the state Democratic party constituted "a mere refusal of party membership with which "the state need have no concern,'" 56 and thus that t he Texas all-white Democratic primary did not violate the Fourteenth or Fifteenth Amendment rights of African Americans because it did not constitute state action. 57

 

Given only Grovey, then, Smith's claim had little chance of success. Since Grovey, however, the Court had decided United States v. Classic, 58 which held that Congress had the constitutional power to regulate state primary elections as well as general elections "where the primary is by law made an integral part of the election machinery." 59 As the Allwright Court reasoned, "the fusing by the Classic case of the primary and general elections into a single instrumentality for choice of officers has a definite bearing on the permissibility under the Constitution of excluding Negroes from primaries." 60 Classic thus "called for a reexamination as to whether or not the exclusion of Negroes from a Texas party primary was state action." 61 In Allwright, the Court overruled Grovey, 62 holding that party primaries constitute state action when, as in Texas, they "become a part of the machinery for choosing officials, state and national." 63

 

The Allwright Court, however, did not defend its departure from stare decisis by reference to any "special justification." Instead, the Allwright Court distinguished between the force of stare decisis in statutory and constitutional cases:

 

 

 

In reaching this conclusion we are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its [*591] constitutional decisions. This has long been accepted practice, and this practice has continued to this day. 64

 

At first glance, then, Allwright appears to be a case of error correction in constitutional questions, pure and simple: "when convinced of former error, this Court has never felt constrained to follow precedent." 65 This hardly suggests that any "special justification" - beyond conviction that an error has been made - is needed to justify overruling a precedent. Under this approach, then, stare decisis would have little, if any, role in constitutional adjudication, as opposed to statutory interpretation, where it would be given more weight. As was the case with Swift, Justice O'Connor's citation of Allwright does not clearly support her claim in Rumsey that "in constitutional cases, any departure from the doctrine of stare decisis demands special justification." 66

 

Two additional observations must be made regarding Allwright, however. Firs t, despite the Allwright Court's explicit discussion of the limited role of stare decisis in constitutional cases, that case involved more than the conviction that Grovey had been erroneously decided. Allwright also involved the subsequent development of case law in Classic. Grovey held that the Texas Democratic party was a private, voluntary organization and thus that its exclusion of African Americans did not constitute state action. 67 Subsequent doctrinal development rejected Grovey's overly narrow characterization of political parties as private organizations, undermining Grovey's rationale. As will be discussed below, the contemporary Court would treat this subsequent doctrinal development as a "special justification," even though the Allwright Court clearly did not do so. Similarly, in Swift, the contemporary Court would treat the Kesler rule's unworkability as a "special justification" for overruling that case, even though the Swift Court did not exactly follow that line of reasoning. 68

 

Second, Allwright provides an important connection in the Court's theorizing of stare decisis, linking Justice O'Connor's Rumsey opinion to Justice Brandei s' dissenting opinion in Burnet v. Coronado Oil & Gas Co. 69 Further discussing the limited role of stare decisis in constitutional cases, the Allwright Court continues: "This is particularly true when the decision believed erroneous is the application of a constitutional principle rather than an interpretation of the Constitution to extract the principle itself." 70 This proposition is supported by a citation to Justice Brandeis' Coronado Oil dissent, which is discussed in the next section. Although the contemporary "special justification" approach to stare decisis breaks with Justice Brandeis' traditional account, the contemporary Court cites and quotes the Coronado Oil dissent to support the "special justification" approach. Thus, an [*592] examination of Justice Brandeis' Coronado Oil is required to fully understand the contemporary doctrine.

 

B. Justice Brandeis' Coronado Oil Dissent

 

Justice Brandeis' Coronado Oil dissenting opinion is perhaps the single most cited case on stare decisis. 71 As with both Swift and Allwright, however, the contemporary Court's reasons for citing it are not immediately apparent.

 

The facts of Coronado Oil were relatively straightforward. The commissioner of Internal Revenue had assessed income and other taxes against Coronado Oil based on profits derived from oil and gas wells leased from the state of Oklahoma . 72 Coronado Oil challenged this assessment, claiming that the income from its leases were shielded from federal taxation 73 under the precedent of Gilles pie v. Oklahoma. 74 The oil company's argument was that its lease was a state function, as the state government derived income from the lease for the support of public schools; thus, for the federal government to tax the profits from the lease would "burden [the state] in the performance of the governmental function of maintaining such schools." 75 The Coronado Oil Court held that Gillespie applied under these circumstances and thus that the oil company's profits from the leases were not subject to federal income taxes. 76 The rationale for this rule was that "the states are essential parts of the plan adopted by the Federal Constitution; and we accept as settled doctrine that the United States can lay no tax upon their governmental instrumentalities." 77 Thus, as the oil and gas leases at issue in Coronado Oil were state instrumentalities, they could not be taxed by the federal government under this established principle.

 

Justice Brandeis dissented. Because the Coronado Oil Court had relied to a great extent on stare decisis, Justice Brandeis presented an elaborate argument o n the application of stare decisis in constitutional cases:

 

Stare decisis is not, like the rule of res judicata, a universal, inexorable command. The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. 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. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has [*593] often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. In cases involving the Federal Constitution the position of this Court is unlike that of the highest court in England, where the policy of stare decisis was formulated and is strictly applied to all classes of cases. Parliament is free to correct any judicial error; and the remedy may be promptly invoked. 78

 

After noting that "in most matters it is more important that the applicable rule be settled than that it be settled right," 79 Justice Brandeis argues that this is not so in constitutional cases. The reason for this distinction between stare decisis in constitutional and statutory cases, also drawn in Allwrigh t, 80 is clear. If the Court errs in interpreting a statute, Congress is always free to correct the Court's error. 81 If the Court errs in interpreting the Constitution, however, "correction through legislative action is practically impossible." 82 In the United States, there is no all-powerful Parliament " to correct any judicial error," and thus the Court must play this role, correcting its own errors when there is no other institution to do so. Thus, as argued in part I, the practice of judicial review requires that the Court be free to overrule its constitutional precedents when, in the considered judgment of members of the Court, those precedents are not consistent with the Constitution.

 

The facts of Coronado Oil further supported Justice Brandeis' argument against deference to precedent: "The reasons why this court should refuse to follow an earlier constitutional decision which it deems erroneous are particularly strong where the question presented is one of applying, as distinguished from what may [*594] accurately be called interpreting, the Constitution." 83 This second distinction, also relied upon by the Allwright Court, is between "interpreting" the provisions of the Constitution and applying those provisions to "existing conditions." 84 Justice Brandeis notes that "there is seldom any dispute as to the interpretation of any [constitutional] provision" in the cases that come before the Court: "The controversy is usually over the application to existing conditions of some well-recognized constitutional limitation." 85 To illustrate this, he points to "cases under the due process clause when the question is whether a statute is unreasonable, arbitrary, o r capricious" 86 and "cases under the equal protection clause when the question is whether there is any reasonable basis for the classification made by a statute." 87 In Justice Brandeis' opinion, then, the meaning of the due process and equal protection clauses is clear and not often disputed; rather, what is disputed in most cases is the application of these clear principles to present facts and circumstances. He continues:

 

“These issues resemble, fundamentally, that of reasonable care in negligence cases, the determination of which is ordinarily left to the verdict of the jury. In every such case the decision, in the first instance, is dependent upon the determination of what in legal parlance is called a fact, as distinguished from the declaration of a rule of law. When the underlying fact has been found, the legal result follows inevitably. The circumstance that the decision of that fact is made by a court, instead of a jury, should not be allowed to obscure its real character.” 88

 

Determining whether a law violates "due process" or "equal protection," then,

is the same sort of factual determination as finding the defendant liable in a negligence case. This understanding of stare decisis, then, collapses constitutional interpretation into the "ordinary" tasks performed by trial courts every day - i.e., the application of "clear" standards, like "reason able care," or "due process," to facts. In Allwright, for example, the issue was the application of "the well established principle of the Fifteenth Amendment, forbidding the abridgement by a state of a citizen's right to vote." 89 That the Grovey Court 90 erred in applying this "well established principle" to the facts of that case should not (and did not) constrain the Court from applying the principle correctly in a later case.

 

What is at stake, then, is merely the standard of review. Juries may erroneously find a defendant liable by misapplying the "reasonable care" standard, and courts, including the Supreme Court, may misapply the clear standards of "due process" and "equal protection." When an appellate court reviews a jury's findings of fact and determines that a particular finding is unsupported or erroneous, the appellate court must reject that particular finding; the standard of review is deferential, but not [*595] absolutely so. 91 In the case of the Supreme Court reviewing its own prior "factual" determinations - whether, for example, a particular kind of state law violates equal protect ion or the Fifteenth Amendment - the Court is obligated to review its own factual findings, i.e., its precedent, to determine if those findings were correct. This review may also be deferential, but Justice Brandeis' discussion suggests that it will not be as deferential as the appellate review of a jury's findings of fact. If anything, Justice Brandeis' theory reverses the ordinary standards of review, treating constitutional interpretations more deferentially and factual findings less deferentially. Ordinarily, an appellate court will re view the lower court's conclusions of law less deferentially than its findings o f fact. 92

 

In Coronado Oil, Justice Brandeis argues that Gillespie "was wrongly decided and should now be frankly overruled." 93 Thus, he would have the Court sit in the position of a reviewing court reversing a lower court's erroneous findings of fact. But there is a key difference between a reviewing court's reversal in a particular case and the Court's application of the same principle in different cases:

 

For not only may the decision of the fact have been rendered upon an inadequate presentation of then existing conditions, but the conditions may have changed meanwhile. Moreover, the judgment of the Court in the earlier decision may have been influenced by prevailing views as to economic and social policy which have since been abandoned. In cases involving constitutional issues of the character discussed, this Court must, in order to reach sound conclusions, feel free to bring its opinions into agreement with experience and with facts newly ascertained, so that its judicial authority may, as Mr. Chief Justice Taney said, "depend altogether on the force of the reasoning by which it is supported." 94

 

Although Justice Brandeis believed that Gillespie itself had been wrongly decided, here he clearly indicates that changed facts and circumstances can also provide justification for overruling precedent - at least, that is, where the case involves the application of clear constitutional principle to fact s. In addition, Justice Brandeis suggests that changed understandings on policy questions may also justify departures from precedent in some cases. In such situations of changed facts or changed understandings, the Court "must feel free to bring its opinions into agreement with experience." 95

 

Two points must be made regarding Justice Brandeis' theory of stare decisis in constitutional cases. First, one could take issue with his characterization of most constitutional adjudication. It is certainly difficult to agree with Justice Brandeis' [*596] assertion that "well recognized constitutional limitations" are not in dispute in most cases; 96 rather, if the meanings o f the broad constitutional phrases at issue were more clear, perhaps their application would be less controversial. As a point of comparison, consider then-Professor Frankfurter's discussion of constitutional adjudication in M r. Justice Holmes and the Constitution. 97 Professor Frankfurter wrote that "t he broad, undefined clauses of the Constitution and the general theories which underlie it give rise to very difficult problems for adjudication." 98 Taking as his example the Commerce Clause, he continued that "the scope for interpretation of the Constitution is here relatively unrestricted." 99 Decisions interpreting such clauses, he concludes, are "inevitably exercise s in judgment." 100 If that is indeed the case, then why would a later Court be any more constrained by a previous Court's exercise of judgment regarding the meaning and scope of a constitutional provision than by the previous Court' s application of a clear provision to a given set of facts?

 

Second, Justice Brandeis' discussion provides the "special justification" approach with its third and final such justification - namely, changed fact s and circumstances. Thus, just as Swift and Allwright provided the later theory with ready-made special justifications - unworkability and subsequent doctrinal development, respectively - Justice Brandeis' Coronado Oil dissent provides the later theory with a ready-made "special justification" for overruling precedent. 101 Justice Brandeis does not treat changed facts or circumstances as a "special justification" for overruling precedent, just as neither Swift nor Allwright held that unworkability or subsequent doctrinal development constituted "special justifications" for overruling precedent. If anything, Justice Brandeis' dissent seems to cut against requiring a "special justification" to overrule constitutional precedents because it argues that , in constitutional cases, it is not the case "that the applicable rule be settled than that it be settled right." 102 For this reason, citations to his Coronado Oil dissent in "special justification" arguments are somewhat strained, if understandable.

 

The "special justification" approach to stare decisis in constitutional cases changes the standard of review of constitutional precedents from the relatively non-deferential standard outlined by Justice Brandeis to a more deferential one. Part III of this article argues that this change in the standard of review for constitutional precedents occurred as a result of the politically polarized environment of the late 1980s and 1990s. When certain Justices found themselves faced with the choice of overruling precedents that they believed to have been erroneous in the first instance or reaffirming those precedents to protect the Court's legitimacy, these Justices chose the latter. In the process, they developed a new kind of "overruling rhetoric," which has found widespread acceptance on the contemporary Court, if not among Court commentators.

 

 [*597]

 

III. The Subsequent Development of the "Special Justification" Approach

 

A. Patterson v. McLean Credit Union (1989)

 

Patterson v. McLean Credit Union 103 forms an important chapter in the development of the "special justification" theory of stare decisis in constitutional cases. Although Patterson involved a matter of statutory interpretation, the majority opinion, written by Justice Kennedy, provides a more complete account of what constitutes a "special justification" sufficient to overrule a precedent than did Justice O'Connor's summary statement in Rumsey.

 

Decided in the highly politicized environment of the late 1980s, Patterson involved the reconsideration of a civil rights precedent, Runyon v. McCrary , 104 decided in 1976. Given recent changes in the Court's membership, many, including some members of the Court, believed that Runyon would be overruled in Patterson. 105 The Court, however, unanimously reaffirmed Runyon in Patters on, concluding that "there is no special justification for departing here from the rule of stare decisis." 106

 

For present purposes, the key issue in Patterson was whether 42 U.S.C. 1981, which prohibits racial discrimination in the making of contracts, applies t o private contracts. 107 Runyon established that 1981 applies to private contracts. 108 On this point, the Patterson Court concluded that "Runyon should not be overruled." 109 In justifying this conclusion, Justice Kennedy did not argue that Runyon had been correctly decided in 1976. To the contrary, he i s quite clear that he and other members of the Court thought that it was "unnecessary to address [that] issue" given the lack of a special justification for overruling Runyon. 110 Not all the members of the Court agreed with this decision not to address the merits of Runyon. In his separate opinion, concurring in part and dissenting in part, Justice Brennan complained that the Court had ignored an "obvious" reason for reaffirming Runyon, [*5 98] namely that it had been correctly decided. 111 On the other hand, some members of the Court who voted to reaffirm Runyon would have overruled Runyon if the Court had reconsidered its merits. 112 Professor Simon's account of the Patterson conference has the Chief Justice and Justices White, O'Connor, an d Scalia expressing the view that Runyon had been wrongly decided but that the Court lacked sufficient justification to overrule it. 113 He also quotes Justice Scalia in conference as stating that "Runyon was wrong, but public reaction [to the threat of overruling it] is appropriate and I would not overrule [Runyon]." 114

 

Understanding what constitutes a "special justification" for overruling a precedent, then, is very important for understanding Patterson. Four Justices voted to reaffirm Runyon, despite their misgivings regarding the correctness of the decision, based on the lack of a special justification for overruling it. 115

 

As both Professor Simon's account and Justice Kennedy's opinion suggest, concerns over the Court's legitimacy largely motivated these votes. Indeed, Patterson's discussion of stare decisis begins by noting the ""fundamental importance'" of stare decisis ""to the rule of law.'" 116 Building on this principle, Justice Kennedy continues that "it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon "an arbitrary discretion.'" 117 Stare decisis thus operates as an important check on the discretion of judges: ""any departure from the doctrine of stare decisis demands special justification.'" 118 If the law changes just because the current members of the Court disagree with previous members, then the Court's decisions would no longer appear to be based on interpretations of the law. Instead, the Court's decisions would appear as merely the predilections of the current members of the Court.

 

Justice Kennedy then draws a distinction between stare decisis in statutory and constitutional cases: "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated." 119 As discussed above, in Rumsey Justice O'Connor asserted that "any departure " from stare decisis "demands special justification." 120 Justice Kennedy's point is that the "special justification" [*599] requirement is greater for overruling statutory precedents than for constitutional interpretation. The reason for this, of course, is that Congress can undo the Court's erroneous statutory precedents through subsequent legislation, but only a constitutional amendment or subsequent overruling can effectively undo an erroneous constitutional precedent. 121 As in Swift, this discussion raises the possibility that the remainder of Justice Kennedy's discussion of the reasons that meet the "special justification" standard would apply only to statutory precedents. This is not, however, the case. Instead, the Court has generally adopted Justice Kennedy's three "special justifications," modifying them for the purposes of constitutional adjudication. 122

 

The three "special justifications" appear in Justice Kennedy's Patterson opinion in roughly the same form in which they appear in later constitutional cases . The first "special justification" considered by Justice Kennedy is where "the growth of judicial doctrine or further action taken by Congress" has "removed or weakened the conceptual underpinnings from the prior decision," 123 or "where the later law has rendered the [earlier] decision irreconcilable with competing legal doctrines or policies." 124 Justice Kennedy concludes that the rule established in Runyon "has not been undermined" in this way by subsequent developments in the law. 125

 

The second "special justification" is that "a precedent may be a positive detriment to coherence and consistency in the law because of inherent confusion created by an unworkable decision, or because [it] poses a direct obstacle to the realization of important objectives embodied in other laws. " 126 The latter half of this justification would seem to apply exclusively i n the field of statutory interpretation, but the first half is recognizable a s the point developed in Swift, which Justice Kennedy cites in support of this proposition. Justice Kennedy argues that Runyon has not proven unworkable o r confusing and that it has not frustrated other congressional objectives. 127

 

The third "special justification" considered by Justice Kennedy is where a precedent "becomes outdated and after being "tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare.'" 128 This justification is generally consistent with Justice Brandeis' discussion in Coronado Oil of how changed facts and circumstances, or changed understandings, can undermine the legitimacy of a precedent and justify its overruling. Justice Kennedy [*600] raises an interesting question after offering this justification - namely, what effect such a consideration should have in statutory cases. 129 Congress is arguably the appropriate institution to "update" outdated laws, and the Court should generally avoid speculating as to what shape such new laws should take. 130 This issue does not arise in Patterson, however, as Justice Kennedy concludes that Runyon's interpretation of 1981 has not become outdated in this way. 131

 

Patterson provides two key developments in the development of the "special justification" approach. First, the Patterson Court justified its decision not to overrule Runyon by arguing that there was no special justification for overruling it, not by holding that Runyon had been correctly decided. The lack of a "special justification" meant that, at least in the field of statutory interpretation, the Court could not justify a departure from stare decisis, even if some members of the Court were convinced that Runyon had been incorrectly decided in 1976. Whether the Court would have reached the same conclusion had the issue been one of constitutional interpretation is not clear from Patterson. Second, in Patterson the Court's contemporary "special justification" approach to stare decisis takes a more definite form by comparison to the single sentence in Justice O'Connor's Rumsey opinion. Although the considerations laid out in Patterson will be further refined and developed in subsequent cases, it was in Patterson that the Court first identified the specific reasons that can constitute a "special justification."

 

B. Payne v. Tennessee (1991)

 

In Payne v. Tennessee, 132 decided in 1991, a narrowly divided Court overruled two recent precedents, Booth v. Maryland 133 and South Carolina v. Gathers. 134 Taken together, Booth and Gathers had held that "the Eighth Amendment prohibits a capital sentencing jury from considering "victim impact' evidence relating to the personal characteristics of the victim and the emotional impact of the

crimes on the victim's family." 135 In overruling these newly minted precedents, the Court, in an opinion by Chief Justice Rehnquist, rejected t he appeals of "Payne and his amicus" to reaffirm Booth and Gathers because of stare decisis. The Chief Justice, however, does not make reference to any required "special justification" for overruling constitutional precedents, despite a lengthy discussion of stare decisis. Instead, the Chief Justice offered the following reasons for overruling Booth and Gathers:

 

 [*601]

 

Booth and Gathers were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions. They have been questioned by Members of the Court in later decisions and have defied consistent application by the lower courts. Reconsidering these decisions now, we conclude, for the reasons heretofore stated, that they were wrongly decided and should be, and now are, overruled. 136

 

From this, it is clear that the Court's primary justification for overruling both Booth and Gathers is the conviction of the majority that the cases "we re wrongly decided." The narrowness of the decisions, the spiritedness of the dissents, and even the subsequent unworkability of the rule established in those cases are presented as evidence for the claim that the cases were wrongly decided in the first place. In making this argument, then, it is not surprising that the Chief Justice makes use of Justice Brandeis' distinction between s tare decisis in constitutional and statutory cases to stress the limited role of stare decisis in constitutional cases. 137 He emphasizes that "when governing decisions are unworkable or are badly reasoned, "this Court has never felt constrained to follow precedent.'" 138

 

That the Chief Justice omitted the requirement of a "special justification" from his argument and instead focused on disagreement with the merits of the earlier decisions strongly suggests that the "special justification" approach had not yet become established as a central part of the Court's stare decisis doctrine in 1991. As the quoted passages indicate, however, the Chief Justice's argument for overruling Booth and Gathers relied to some extent on the "unworkability" of the precedents, and thus the Chief Justice could have made a "special justification" argument if, in 1991, he had considered that to be necessary. Although it may be unwise to read too much into such omissions, it is interesting that, in a concurring opinion, Justice Souter makes just this argument in defense of the Payne Court's decision to overrule Booth and Gathers. After stating that "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification,'" 139 Justice Souter adds, "the Court has a special justification in this case." 140 He continues: "In prior cases, when this Court has confronted a wrongly decided, unworkable precedent calling for some further action we have chosen to overrule the precedent." 141

 

Other members of the Payne Court rejected the claim that such a justification existed for overruling Booth and Gathers. In his last opinion as a member o f the Court, 142 Justice Marshall used the rhetoric of "special justification " to accuse his [*602] colleagues of substituting their own policy preferences for the law. The opening sentence of his dissent sets the tone for the attack: "Power, not reason, is the new currency of this Court's decision making." 1 43 This theme of "power" versus "reason" runs throughout the dissent. In the second section of the opinion, for example, Justice Marshall stressed the importance of stare decisis "to "a society governed by the rule of law.'" 144 In this context, Justice Marshall quoted a New Hampshire Supreme Court dissent, authored by Justice Souter when he had served on that court, to the effect that "stare decisis" is essential if case-by-case judicial decision-making is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results.'" 145 I n Justice Marshall's view, the Payne Court had exercised its arbitrary will rather than respect for the rule of law in overruling Booth and Gathers. After summarizing Patterson's "special justification" criteria, 146 Justice Marsh all contended that the overruling of precedent in Payne was not supported by a change in doctrine or in underlying facts, but instead by changes in the Court's membership. 147

 

On this point, Justice Marshall argued that "stare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of "the judiciary as a source of impersonal and reasoned judgments.'" 148 The reference to commercial activity addresses the Chief Justice's contention, in the Court's opinion, that "considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases involving procedural and evidentiary rules." 149 Justice Marshall criticized this position as "impoverished," 150 arguing instead:

 

 

Stare decisis is in many respects even more critical in adjudication involving constitutional liberties than in adjudication involving commercial entitlements. Because enforcement of the Bill of Rights and the Fourteenth Amendment frequently requires this Court to rein in the forces of democratic politics, this Court can legitimately lay claim to compliance with its directives only if the public understands [*603] the Court to be implementing "principles founded in the law rather than in the proclivities of individuals." 151

 

Justice Marshall's argument on this point tracks the discussion of the relationship of the rule of law in part I of this article. In a democratic political system with a written constitution, the legitimacy of an institution like judicial review is tolerable only if the Court's decisions are understood as principled applications of the written constitution. If, however, membership changes on the Court are followed by the overruling of precedent, this calls into doubt the principled nature of judicial review and thus undermines the Court's legitimacy. Changes in doctrine following changes in membership suggest that the resulting doctrine is the product of the predilections of the individuals on the Court rather than reason or principle.

 

Justice Marshall's dissent indicated that the "special justification" approach to stare decisis was necessary to protect the Court's legitimacy when it overrules precedent. When the Court is able to point to a "special justification" for overruling a precedent, it can claim to be deciding case s in a reasonable and principled manner. This argument will figure prominently i n the joint opinion in Planned Parenthood v. Casey. 152

 

In many ways, Payne was the turning point for the "special justification" theory of stare decisis. This section has shown that the "special justification" argument was "available" for the Chief Justice, but he chose not to make it in 1991. Although there may be many reasons why the Chief Justice chose not to make this argument, the key point is that he and other members of the Court did not consider the existence of "special justification" to be necessary to overrule Booth and Gathers. On the other hand, Justice Souter invoked the "special justification" argument in his concurrence, motivated at least in part by Justice Marshall's dissenting opinion. Justice Marshall's dissent made two things abundantly clear. First, the "special justification" approach to stare decisis provides a means of protecting the Court's legitimacy at its most vulnerable point - the overruling of precedent. Second, that protection would be needed if the new conservative majority on the Court chose to overrule any landmark precedents. If the conservative majority of the Court could not plausibly argue that there was such a "special justification," then it could expect dissents as angry and biting as Justice Marshall's in Payne. Such dissents, moreover, would attack the very basis of the Court's legitimacy - the appearance of principled decision-making.

 

C. Planned Parenthood v. Casey (1992)

 

In Planned Parenthood v. Casey, the Court reaffirmed what it called the "essential holding" 153 of Roe v. Wade, 154 despite the efforts of the first Bush administration to [*604] persuade the Court to overturn Roe 155 and the widespread expectation that the Court would do so. 156 The joint opinion in Casey, which was authored by Justices O'Connor, Kennedy, and Souter, is one of the more unusual opinions in Supreme Court history, primarily because of the tensions that exist between parts II and III of the opinion. Part II begins with a sentence that reads: "Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment." 157 Part II then goes on at length to defend this statement in what must be one of the most in-depth and lengthy discussions of substantive due process found in the United States Reports. Part II ends, however, with the statement that "the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis." 158 Part III then addresses the precedential force of Roe, which is only necessary because the Justices' reservations regarding the central holding of Roe are not outweighed merely by their own explication of substantive due process. Instead, the Casey joint opinion points to "the obligation to follow precedent" as a n additional reason for upholding Roe. 159 In other words, Roe's central holding is reaffirmed in Casey not only because, as the Justices maintain, it is firmly grounded in or derived from the Due Process Clause, but also because of stare decisis. As the joint opinion states in its discussion of the relative weight of the woman's and State's interests, "the matter is not before us in the first instance, and the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded its holding." 160 This ambivalence toward Roe's rationale stands in marked contrast to the joint opinion's reaffirmation of that rationale in part II.

 

 [*605] As a result of this ambivalence, the Casey joint opinion treats the question of whether Roe was correctly decided in 1973 as secondary to "the precedential force" that Roe must be accorded by the Court. 161 In analyzing Roe's "precedential force," the joint opinion stresses both the practical necessity of stare decisis 162 and the necessity of the doctrine to "the very concept of the rule of law underlying our own Constitution." 163 Stare decisis is "not an inexorable command," 164 especially in constitutional cases, but , because of the "continuity over time" called for by the rule of law, the joint opinion explains:

 

When this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. 165

 

The joint opinion then goes on to explain "four prudential and pragmatic considerations" that arise in the Court's consideration of its own precedents. These considerations are described as follows:

 

 

We may ask whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. 166

 

Note that three of these four considerations are recognizable from previous cases as "special justifications," reasons the Court has previously stated are sufficient to justify the overruling of precedent. To support this proposition, the Court cites Swift, Patterson, and Justice Brandeis' dissent in Coronado Oil, among other cases. The only consideration that has not previously been identified as a "special justification" is the joint opinion's inclusion of reliance interests in the list. If anything, reliance interests are really a justification for not overruling precedent rather than a justification for overruling. The absence of reliance interests, after all, would not necessarily justify the overruling of precedent.

 

The key point is that three of these "pragmatic and prudential considerations" determine when the overruling of a precedent is justified - i.e., when it can be [*606] reconciled with the continuity required by the rule of law. Although the joint opinion does not call these considerations "special justifications" at this point in the discussion, it does refer to them at another point as "special reasons over and above the belief that a prior case was wrongly decided." 167 Thus, it is relatively clear that, in considering whether there are reasons sufficient to justify overruling Roe, the Casey joint opinion employs the "special justification" approach outlined in previous cases.

 

The Casey joint opinion concludes that there is no "special justification" or "reason" - beyond the belief of some members of the Court that the precedent was wrongly decided - to justify overruling Roe. First, the joint opinion concludes, without much discussion, that Roe has not "proven unworkable;" i n short, the application of Roe by the lower courts "falls within judicial competence." 168 Second, the joint opinion finds that reliance interests have developed as a result of Roe and thus that this pragmatic consideration counsels against its overruling. 169 Third, the joint opinion concludes that "no evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973." 170 Fourth, the joint opinion concludes that facts have not changed, or come to be seen differently, so "as to have robbed the old rule of significant application or justification." 171 In the Casey joint opinion, this inquiry focuses on whether the facts regarding viability have changed to such an extent to undermine Roe's central holding. 172 Advances in medical science have resulted in viability at an earlier point in pregnancy, 173 but the joint opinion stresses that these changes have not robbed Roe of justification, because "whenever it may occur, the attainment of viability may continue to serve as the critical fact." 174

 

Although the Casey joint opinion concludes that "within the bounds of normal stare decisis analysis, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have," 175 the joint opinion states that additional stare decisis analysis is necessary because of the controversial nature of Roe. 176 The joint opinion goes on to compare its consideration of Roe to the Court's prior treatment of Lochner v. New York 177 and [*607] other cases in the economic substantive due process line of cases and of Plessy v. Ferguson. 178 It is not necessary to summarize this discussion at any length. What is important for present purposes is the joint opinion's general account of the Court's prior determinations to overrule controversial precedents. In rejecting both economic substantive due process (in West Coast Hotel Co. v. Parrish 179) and "separate but equal" ( in Brown v. Board of Education 180), the joint opinion argues, the Court's overruling decision "rested on facts, or an understanding of facts, changed from those which furnished the claimed justifications for the earlier constitutional resolutions." 181 The joint opinion continues:

 

Each case was comprehensible as the Court's response to facts that the country could understand, or had come to understand already, but which the Court of an earlier day, as its own declarations disclosed, had not been able to perceive. As the decisions were thus comprehensible they were also defensible, not me rely as the victories of one doctrinal school over another by dint of numbers (victories though they were), but as applications of constitutional principle to facts as they had not been seen by the Court before. In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty. 182

 

Importantly, the joint opinion presents a view very similar to Justice Brandeis' formula of treating constitutional adjudication as the application of "well recognized constitutional limitations" to facts. 183 The disputed issue, in other words, is not the meaning of the Constitution but the application of that meaning to facts. Although the meaning of the Constitution itself does not change, the correct application of that meaning may need to change to be brought into conformity with changed facts and circumstances.

 

Second, the joint opinion stresses that West Coast Hotel and Brown were comprehensible as the Court's response to changed facts. 184 It does not say that these decisions were actually based on changes in the underlying facts . 185 To the contrary, the joint opinion appears to take the position that both Lochner (and its progeny) and Plessy were erroneous when first decided. This is clearer for Plessy, about which the authors of the joint opinion actually state that "we think Plessy was wrong the day it was decided." 186 The joint opinion's treatment of the "fundamentally false factual assumptions" 187 on which economic substantive due process rested, however, suggests the same conclusion with respect to those decisions. If the economic substantive due process decisions and Plessy were [*608] erroneous when first decided, then why the further concern with whether their rejection was comprehensible and defensible?

 

The reason for this further concern is that, in controversial areas of constitutional law, the Court must be as conscious of appearances and public opinion as with the validity of its constitutional interpretations. The reason for this is that "the Court's power lies in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." 188 This legitimacy is based in "the warrant for the Court's decisions in the Constitution" 189 and the principled nature of its justifications for its decisions in its opinions. 190 But, the joint opinion warns, "not every conscientious claim of principled justification will be accepted as such." 191 Thus, in certain cases the Court might reach a conclusion for principled reasons, and yet that decision would still be regarded as political. For this reason, the joint opinion argues:

 

The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, a s such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. 192

 

In addition to providing principled justifications for its decisions and interpretations, then, the Court must provide sufficiently plausible principled justifications so that the Nation can accept them as principled. This helps to explain the joint opinion's concern with the comprehensible and defensible nature of the Court's decisions. It is not enough for the Court's decisions to be grounded truly in principle. Those decisions must also be presented in such a way that "the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law" are not compromised. 193 Interestingly, the joint opinion stresses that in normal cases the Court is usually able to "give a perfectly satisfactory explanation" [*609] for overruling precedent. 194 Apparently, such a satisfactory explanation would be grounded in the "special justifications" outlined in the joint opinion's discussion of normal stare decisis. The "special justifications" are thus needed because once the Court has spoken on a matter of constitutional interpretation, disagreement - even principled disagreement - with that precedent undermines the appearance of the rule of law.

 

In most cases, then, the "special justifications" will enable the Court to provide a plausible and satisfactory explanation of its decision to overrule a precedent. But the problem remains that principled disagreement with a precedent raises the specter of what the joint opinion refers to as "doctrinal schools." 195 When disagreements between such doctrinal schools rise above the merely academic level and become matters of national controversy, the Court is placed in a bind. 196 To avoid the appearance that its decisions are based on nothing other than the personal predilections of its current members - a concern in less prominent cases, but a paramount concern in the most controversial cases - the Court must find a way to overturn such controversial precedents without undermining its legitimacy. The disputes of these different doctrinal schools involve matters of principle; however, principled reasons alone are not enough to provide a sufficiently plausible justification. In effect, the line between politics and principle breaks down at this level because the political disagreements are inextricable from disagreements about principle.

 

Thus, if the Court can argue that facts have changed in such a way as to undermine the controversial precedent, then it can overturn that precedent and (hope to) avoid undermining its legitimacy. In the case of Roe, however, the joint opinion states that the facts have not changed to the extent that the principled disagreements of its authors can be bolstered with a pragmatic or prudential "special justification":

 

 

Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out [*610] differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. 197

 

For other members of the Court, however, "a present doctrinal disposition t o come out differently from the Court of 1973" constituted a sufficient reason for overruling Roe. 198 Chief Justice Rehnquist, joined by Justices Scalia and Thomas, rejected the joint opinion's "special justification" approach as a "newly minted variation on stare decisis." 199 He continued: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases." 200 Later in his dissent, moreover, the Chief Justice argued that, because of t he unavailability of legislative correction in constitutional cases, the Court has the "duty to reconsider constitutional interpretations that "depart from a proper understanding' of the Constitution." 201 He also rejected the joint opinion's concern with the source of the Court's legitimacy in public opinion:

 

 

The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty, and should be no more subject to the vagaries of public opinion than is the basic judicial task. 202

 

 [*611] The Chief Justice thus took the same approach to stare decisis in his Casey dissent as he had in Payne. In both cases, his position was that the precedent was wrongly decided and should be overruled. In neither case did he consider any need for a "special justification." Instead, his call for a "traditional" approach to stare decisis in constitutional cases closely parallels Justice Brandeis' dissent in Coronado Oil. As demonstrated below, however, the Chief Justice would later embrace the "special justification" approach to stare decisis in Dickerson.

 

D. The "Special Justification" Approach After Casey (1992-2000)

 

Between Casey and Dickerson, my research has not found a case in which the "special justification" rhetoric played as important a role as it played in either of those cases. This is not to say, however, that members of the Court did not employ it during these years. Justice Souter, for example, used the "special justification" rhetoric in a dissenting opinion criticizing the overruling of a precedent in 1993. 203 Three other cases also deserve brief mention, as they help to illustrate other uses for the "special justification" approach.

 

In Adarand Constructors, Inc. v. Pena 204 in 1995, Justice O'Connor, joined by Justice Kennedy, defended the overruling of Metro Broadcasting, Inc. v. FCC 205 based on a "special justification." 206 Moreover, Justice O'Connor attempted in her Adarand opinion to distinguish the overruling of Metro Broadcasting fro m the Court's refusal to overrule Roe. 207 Her argument was that, where Casey involved a "long-established precedent," Adarand involved only a recent departure from established case law: "By refusing to follow Metro Broadcasting we do not depart from the fabric of the law; we restore it." 208 Thu s, Metro Broadcasting's underpinnings had been undermined or, perhaps more precisely, had never taken root. As Justice Stevens pointed out in his dissent, however, the Chief Justice and Justices Scalia and Thomas did not join this part of Justice O'Connor's opinion, and thus "three Members of the majority provided no explanation whatsoever for their unwillingness to adhere to the doctrine of stare decisis." 209 It is possible that the Chief Justice and Justices Scalia and Thomas did not consider a "special justification" necessary for overruling an erroneous precedent. In addition, the three Casey dissenters would have certainly been reluctant to sign on to a discussion justifying t he Court's Casey decision.

 

 [*612] Justice Thomas invoked the "special justification" language the next year, however, to defend the Court's decision not to overrule an old Export Clause precedent. 210 After quoting Justice Souter's concurrence in Payne t o the effect that, "even in constitutional cases, the doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification,'" 211 Justice Thomas concluded that the rule established in the challenged precedent had neither become unworkable 212 nor been undermined by subsequent cases. 213 Justice Kennedy, on the other hand, found Justice Thomas' reliance on stare decisis "unconvincing," arguing that the precedent would soon prove unworkable if i t had not yet. 214

 

Finally, in Agostini v. Felton, 215 the majority opinion did not use the term "special justification," but it clearly justified the overruling of Aguilar v. Felton 216 and School District v. Ball 217 on the basis of subsequent developments in Establishment Clause case law. 218 As in Adarand, in Agostini, Justice O'Connor again relied on Case