1

Suppose Supreme Court decision A is subsequently reaffirmed in decisions B and C. Have there ever been situations where the court later overturns A, despite B and C?

2

Yes, such as this limitation on free speech.

Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917).

This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes).

This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance.

Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons.

It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water.

1

Suppose Supreme Court decision A is subsequently reaffirmed in decisions B and C. Have there ever been situations where the court later overturns A, despite B and C?

Yes.

One recent example is Daimler AG v. Bauman (2014), which overruled Pennoyer v. Neff, 95 U.S. 714 (1878) and International Shoe v. State of Washington, 326 U.S. 310 (1945) and a long chain of subsequent U.S. Supreme Court cases regarding the standard for an assertion of general jurisdiction over a defendant by a state court in a civil case in a case with facts unrelated to the state.

Another recent example is Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which overruled the case of Conley v. Gibson, 355 U.S. 41 (1957), which had been the law of the land regarding how specific complaints filed to commence lawsuits had to be in federal courts which had been repeatedly affirmed in for many decades by the U.S. Supreme Court in the meantime.

A third example, which is much less recent, is Brown v. Board of Education, 347 U.S. 483 (1954), which overruled a long line of cases endorsing the separate but equal standard for equal protection of the law under the 14th Amendment originally established in the case of Plessy v. Ferguson, 163 U.S. 537 (1896), which was then reaffirmed in numerous U.S. Supreme Court cases over five decades before it was overruled.

  • The last two seem correct, but I thought Int'l Shoe was still good law. – bdb484 Sep 8 '18 at 2:31
  • @bdb484 Int'l Shoe is no longer good law, despite Justice Ginsberg's efforts to retcon its holding into consistency with its prior case law. Int'l Shoe held that a single office or regular employee or agent in a state gave rise to general jurisdiction over a defendant. Daimler Benz overruled that and held that general jurisdiction over a defendant exists only where it has a headquarters or the equivalent or where it is incorporated (if different). As a result, most big businesses can only be sued in two states now instead of all 50 on any matter. – ohwilleke Sep 8 '18 at 2:33
  • Daimler never comes out and says that, does it? I'm having trouble thinking of what Int'l Shoe would permit that Daimler wouldn't. (Not that I've read either since CivPro.) – bdb484 Sep 8 '18 at 2:36
  • Suppose Telsa is a Delaware corporation with its principal place of business in California and someone is hurt by their car in Florida. Under Int'l Shoe you can sue Tesla in Virginia where it also has a permanent branch office. Under Daimler Benz you can't. This is especially important in class action cases, because often no one court outside the California and Delaware would have jurisdiction over the entire class. – ohwilleke Sep 8 '18 at 2:38
  • Plaintiffs' argued squarely in line with past precedent that under Int'l Shoe that a court could exercise of general jurisdiction in every State in which a corporation "engages in a substantial, continuous, and systematic course of business." Ginsberg was simply lying when she claimed that the words "continuous and systematic," plaintiffs and the Court of Appeals overlooked, were used in International Shoe to describe situations in which the exercise of specific jurisdiction would be appropriate, when it said exactly the opposite, and has been widely understood to mean that for six decades. – ohwilleke Sep 8 '18 at 2:46

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