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In comments on this answer User Suprcat wrote (in part)

I think a big problem is that Marbury v. Madison has been applied in a way that ignores a major caveat: a court's job is to say what the law is, which means that if the court is properly doing its job what the Court says and what the law is will be one and the same, but that will be because a Court that is doing its job will write a decision consistent with the law, not because the law magically changes to match what the Court says. Courts seem to feel a sense of duty to pretend that all previous decisions have been correct, no matter how insanely twisted the law would have to be to fit all past decisions. Much better would be to recognize that Supreme Court decisions might occasionally be wrong, but that would not prevent them from being binding upon the parties involved, or in some cases providing some level of protection from those would rely upon them.

Historically, how willing has the US Supreme Court been to say that its previous decisions were wrong? How willing are US courts to say that previous discussions are right, even if they are inconsistent with current decision? How much of this attitude comes from the Marbury v. Madison case, in which for the first time the US Supreme Court held an act of Congress void as being without Constitutional authority? How does this compare with this attitudes of courts in other common-law countries?

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  • You should keep in mind that many legal systems are rooted in a tradition of common or chthonic law. From that perspective, the law is built up, over time, from the wisdom of generations of ancestors. Courts are supposed to defer to their forebears. Who are we to say that Marbury v. Madison was always wrong, or wrongly applied? One of the justices who unanimously agreed with that decision was William Patterson, a Founding Father who signed the Constitution, was appointed by George Washington, and was confirmed by the same Senate that drafted the Bill of Rights.
    – Davislor
    Nov 9 '21 at 19:20
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    There’s also a very partisan tilt to this particular debate. The majority of the Supreme Court from roughly the late 1950s to the late 1980s were liberals, and they made a lot of rulings that conservatives don’t like. Conservatives responded by adopting a judicial philosophy where precedent doesn’t matter. There was a perfect text whose meaning was fixed for all time and can be discerned just by reading it carefully. Nothing written later has any authority. Thus, we should trust our own judgment and say that every court in the history of the nation has gotten it wrong until now.
    – Davislor
    Nov 9 '21 at 19:32
  • @Davislor I don't see that the somewhat obscure term "chthonic" meaning: "of or relating to the underworld" is helpful here. I don't think that "Courts are supposed to defer to their forebears" is an accurate description of the common law system, surely not in the US. Common-law courts are traditionally supposed to observe stare decisis meaning to let what is decided stand. But when the circumstances are different in a significant way, such a court will often come to a different result. Since some circumstance is always different, [...] Nov 9 '21 at 19:37
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    It’s referring to “chthonic law,” a type of legal system used in many cultures around the world.
    – Davislor
    Nov 9 '21 at 19:38
  • @Davislor [...] deciding when the difference is significant enough to require a different result is a matter of judgement. That is much of what common-;law courts traditionally do, along with making new rules when the statute law (or prior case law) is silent, unclear, or ambiguous. But the US Supreme Court has said that it does not feel bound by .*stare decisis*, and this is not an invention of the testualists. Not even the testualists would say that "precedent doesn’t matter althoguh they give it less weight than may others do (but not the "legal realists".) Nov 9 '21 at 19:43
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As for SCOTUS being willing to overrule itself, here is a table of such cases, starting with Hudson v. Guestier 10 U.S. (6 Cr.) 281 (1810) which overturned Rose v. Himely, 8 U.S. (4 Cr.) 241 (1808) up to Ramos v. Louisiana, No. 18-5924 (U.S. Apr. 20, 2020) which overturned Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion) and Johnson v. Louisiana, 406 U.S. 366 (1972) (Powell, J., concurring). This is 234 cases since 1798, slightly above once a year. No idea what the rate is for the UK or Canada.

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    The UK had no constitutional law cases until very recently. Canada's constitutional jurisprudence mostly dates to the 1980s and afterwards. In both cases, barely enough time to make precedents let alone overturn them.
    – ohwilleke
    Nov 8 '21 at 21:15
  • @ohwilleke is the question limited to the overturning of constitutional decisions? The principle of binding precedent certainly came to the US from the English system, and that long predates "very recently."
    – phoog
    Nov 9 '21 at 11:43
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    @ohwilleke I'm not so sure about that. Judgement in Ashby v White, which I think is seen as an important case in UK constitutional law, was handed down in 1703, which doesn't meet my definition of "recent".
    – MadHatter
    Nov 9 '21 at 13:05
  • @phoog Hard to tell from the question how broad it is.
    – ohwilleke
    Nov 9 '21 at 20:22
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Less than 1% of the time

From this article:

In my forthcoming book, “Constitutional Precedent in Supreme Court Reasoning,” I point out that from 1789 to 2020 there were 25,544 Supreme Court opinions and judgments after oral arguments. The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent.

However, most of those reversals have been in the last 100 years. Partly this is because you can’t overturn precedent until you have a precedent and you can’t have a precedent until an issue has been litigated for the first time. However, the court is a creature of its time and there has been more social and technological change in the last 100 years than the previous 250 and so more opportunities for historical precedent to fall out of step with community expectations. Because the precedent is arguably wrong more people are willing to argue it and the court is more likely to want to hear those arguments creating more opportunity for the precedent to be overturned or, at the least, narrowed in scope.

This, of course,leads to an issue of semantics. I haven’t read the above book nor all 145 decisions that reversed “constitutional precedents” and certainly not the 25,000+ that didn’t. So:

  • I don’t know if the author is excluding cases that overturn common law as opposed to constitutional precedents. He probably is. However, if the US Supreme Court is like the Australian High Court, they are far more likely to revisit a constitutional decision than a common law one. This is on the basis that the latter can be changed by statute while the former can’t - if the legislature doesn’t agree with the courts decision on common law, they can change it but “the people” are stuck with decisions on constitutional law. While judges have the power to “find” (make) law in Common Law systems most are uncomfortable exercising it as it isn’t democratic.
  • The numbers quoted relate to reversals, courts will often distinguish cases on the facts which don’t meet that requirement. In some cases the distinguishing is so broad that the facts of the original case become virtually impossible to replicate. That is, the original precedent has no practical application but it hasn’t been reversed.
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    And of course, in many cases no one is calling for a precedent, much less a constitutional precednt, to be overturned. Nov 8 '21 at 20:30
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    A big factor is that the constitutional law of individual rights was extremely thin until (i) the incorporation doctrine recognized that they applied outside the federal government mostly starting in the early 1900s, (ii) because the federal government was tiny pre-civil war, and got another huge surge in scale with the New Deal and WWII, and (iii) because there were no direct appeals of criminal convictions in the federal courts until 1890s, only habeas challenges that had narrow grounds.
    – ohwilleke
    Nov 8 '21 at 21:12
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    Also notable is that there wasn't a constitutional right to counsel in many state and local criminal cases until Gideon v. Wainwright, 372 U.S. 335 (1963), so many less affluent defendants had no access to a lawyer to present their valid legal claims which prevented that area of law from developing.
    – ohwilleke
    Nov 9 '21 at 1:43
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    How often the court reverses itself isn't really a measure of how willing it is to reverse itself. Possibly a better measure would be the ratio of reversals to upheld rulings, but that's still dependent on what cases or challenges are heard in the first place.
    – chepner
    Nov 9 '21 at 17:55
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    @Barmar: It is ambiguous. Brandenburg v. Ohio certainly overturned Whitney v. California because SCOTUS said so in the opinion. But it de facto overturned a couple of other cases, one of which (Dennis v. United States) the court actually cited as if it were still good law. Some of the concurrences pointed this out and objected to it (implying they would have overturned Dennis explicitly). How do you want to count that case?
    – Kevin
    Nov 9 '21 at 17:56
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Building on the fascinating data set shared by user6726, we can see that there are some noticeable patterns in how often the Supreme Court has been willing to reverse prior decisions. Since it's a broad question covering many different eras of American law, it might help add some context.


First, let's start with frequency: is there any pattern to how often the Supreme Court decides to overrule previous decisions? A few things stand out immediately: changes tend to cluster together and the overall rate increased dramatically since WW2. It also seems to coincide with major wars quite often (though that doesn't necessarily mean they are related).

frequency

You'll notice that the last 20 years appear to be lower. We can explain this by looking at the distribution of the time gaps - how often are they overruling older decisions compared to more recent ones? This can be shown using a cumulative distribution function. The blue curve shows what fraction of cases were overruled in less than X years (e.g. we can see that both reach ~0.5 within 20 years, so half of cases take less than that).

delays

We can also just plot the overruling date vs the original date directly. This essentially combines the information in the previous two plots. The important things here are the density of points and the vertical distance from the black line (the farther below, the longer it took to overrule).

comparison


There were two things that really stood out to me:

  1. Most overruled decisions are recent. This honestly surprised me, I assumed that the list would be dominated by archaic laws from a different era. It turns out that, according to this data set, 50% of overruled decisions were made within the previous 20 years and only 15-20% were older than 50 years.

  2. Change comes in (increasingly frequent) bursts. We can visibly see several clusters, such right after the Civil War, during both World Wars, and throughout the 60s/70s. The 80s and 90s show a noticeable decline, but the frequency is still much higher than anything pre-WW2.

Based on this, it seems like the Supreme Court since 1940 has been far more willing to overrule earlier decisions (often relatively recent ones). These changes tend to come in bursts that appear to coincide with transformative events (like major wars and cultural shifts), although that becomes harder to tell from 1960s onward due to the much higher baseline rate.

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