“A precedent embalms a principle.”
—British Prime Minister Benjamin Disreali (Feb. 24, 1848)
* * * * * * * * * * * * * *
“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.”
—Burnett v. Coronado Oil & Gas Co., 285 U.S. 393 (1932)
Brandeis, J. , dissenting
Those rightfully chafing at the overturning by the U.S. Supreme Court of the 49-year-old precedent of Roe v. Wade, 410 U.S. Ct. 113 (1973), in its recent decision in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022), bemoan that the departure from stare decisis is a new phenomenon by the high court.
In fact, according to some accounts, the justices have done so, in whole or in part, more than 200 times in the history of the country, an average of nearly one per year, although some observers have a rather loose interpretation of what constitutes a “precedent” or, for that matter, a “reversal.”
Indeed, the Supreme Court’s Dobbs ruling, while a shock to many, was forecast by prescient observers well before the May 2 leak of that decision. (See “Perspectives: Will Roe survive? Will it mater in Minnesota?” in the November 15, 2021, edition of Minnesota Lawyer.)
The same court, with a slightly different composition, four years ago reversed another major long-standing decision from the 1970s, in Janus v. AFSCME, 138 S.Ct. 2448 (2018), which overturned a 1977 decision of Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and now allows union members to refuse to pay “fair share” dues on First Amendment freedom-of-expression grounds despite the contrary ruling in the Abood case.
But one overlooked feature of reversals of precedent is that in many instances the overturning of prior case law has resulted in more liberal or progressive rulings, the opposite of the conservative penchant of the current court. The Minnesota Supreme Court, not as frequently as the U.S. Supreme Court, also has occasionally strayed from stare decisis as well.
The Dobbs decision provides an opportune occasion to review some of the more noticeable instances in which tribunals eschewed precedent for a more liberal course.
Plessy & plenty
The poster child of reversal of prior case law is Brown v. Board of Education, 347 U.S. 483 (1954), which overruled the notorious holding of Plessy v. Ferguson, 163 U.S. 537 (1896) and barred racial segregation in public schools, which precipitated ensuing case law and legislation advancing racial integration in a variety of contexts.
Although not as momentous as that one, there have been plenty of other instances in which the U.S. Supreme Court has overturned precedent.
Observers have deemed the current tribunal the most conservative since the 1930s, when the court had its own precedent-shattering rulings. In one, the court, by a 5-4 vote, in West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937) overturned an earlier decision that had ruled that a minimum wage statute for women was unconstitutional.
Six years later, in the midst of World War II, the court in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) overturned a decision from three years earlier, Minersville School District v. Gobeitis, 310 U.S. 586 (1940) in which the court had upheld a state law compelling students to salute the American flag, notwithstanding any religious objections to doing so. In declaring a mandatory flag salute, despite religious beliefs, unconstitutional, the court famously explained that “[i]f there is any fixed star in our constitutional constitution, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
Following Brown v. Board of Education, the court, under the leadership of Chief Justice Earl Warren, reversed a number of criminal law precedents. They included Mapp v. Ohio, 367 U.S. 643 (1961), which overruled the decision of Wolf v. Colorado, 338 U. S. 25 (1949), which had allowed evidence gathered by authorities in searches that violated the Fourth Amendment to be used in state court proceedings. But Mapp applied the “exclusionary rule” proscribing admissibility of evidence in criminal cases that had been illegally gathered.
Two years later, in Gideon v. Wainwright, 372 U.S. 335 (1963), the court unanimously overturned its decision in Betts v Brady, 316 U.S. 455 (1942) and required state courts to appoint attorneys for indigent defendants in criminal cases.
Then came Miranda v. Arizona, 384 U.S. 436 (1966), in which a narrowly divided 5-4 court held that criminal suspects must be informed of their right to remain silent and be permitted an attorney during custodial interrogation. The decision, written by the chief justice, invalidated two prior court rulings from less than a decade earlier, Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. La Gay, 357 U.S. 504 (1958).
Two other Supreme Court decisions were overturned simultaneously in Katz v. United States, 389 U.S. 347 (1967) in which the high court held that a phone booth could not be wiretapped without a warrant, as required by the Fourth Amendment, in a search-and-seizure provision, overturning Olmstead v. United States, 277 U.S. 438 (1928), and Goldman v. United States, 313 U.S. 588 (1941). The Warren court’s final departure from precedent came in 1969 as the chief justice left the bench. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the court held that laws barring provocative speaking are unconstitutional under the First Amendment unless speech aimed at inciting “imminent lawless action,” overruling Whitney v. California, 274 U.S. 357 (1927).
A much less liberal tribunal joined in a generation later in Lawrence v. Texas, 539 U.S. 558 (2003), invalidating on due process grounds a Texas law criminalizing sodomy between consenting adults, which overturned the court’s ruling in Bowers v. Hardwick, 478 U.S. 186 (1986) upholding a similar Georgia sodomy law.
A pair of business battles also experienced reversals of precedent.
Its determination that the minimum wage and overtime pay provisions of the Federal Fair Labor Standards Act applies to municipal government bodies in Garcia v. San Antonio Metro Transit Authority, 469 U.S. 528 (1985), overturned its own contrary ruling nine years earlier in National League of Cities v. Usery, 426 U.S. 833 (1976).
More than two decades later, in another fractured decision involving the two Dakotas, the court in South Dakota v. Wayfair, 138 S.Ct. 2080 (2018) held that parties who engage in significant business activities on the internet within a state, may be required to pay taxes within the state, even in the absence of a physical presence there. That overturned the court’s prior precedential decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992).
But the court, in some of its most notable decisions, has resisted the temptation, despite its view on the merits of a matter, to overturn precedent. In Flood v. Kuhn, 407 U.S. 258 (1972), the tribunal, in a decision written by Minnesota’s Harry Blackman, adhered to precedent in holding that Major League Baseball is not a business engaged in “interstate commerce” to be subject to antitrust laws, based upon its long discredited, but nonetheless, precedential ruling in Federal Baseball Club of Baltimore v. National League of Professional Base Ball Clubs, 259 U.S. 200 (1922). In doing so, the court recognized the vapidity of the prior ruling, but nonetheless clung to precedent. (See “Baseball impasse recall Twins ‘contraction’ case” in the June 24, 2022, edition of Minnesota Lawyer.)
At the turn of the millennium, Chief Justice William Rehnquist, writing for the court, refused to buck the precedent of the Miranda case, even though he had been a strong detractor of it in post-Miranda cases. In Dickerson v. United States, 530 U.S. 428 (2000), the majority decision adhered to Miranda, despite the chief’s oft-cited misgivings about its prudence, because it had become so ingrained in the “national culture” to warrant its continuity.
Minnesota has contributed to a couple of the jurisprudential reversals at the U.S. Supreme Court. The most recent matter was Obergefell v. Hodges, 576 U.S. 644 (2015), in which the court recognized the constitutional right of same-sex marriage. The decision overruled a one-sentence dismissal ruling of that same principle in a Minnesota case, Baker v. Nelson, 409 U.S. 810 (1972), in which the court held that the issue of same-sex marriage under the due process clause did not raise a “substantial federal question.”
That conservative court of the 1930s also engaged in precedent reversal of a sort at the beginning of that decade. In a landmark case in Minnesota, Near v. Minnesota, 283 U.S. 697 (1931), the high court ruled 5-4 that a state statute permitting prior restraint of a Twin Cities newspaper that offended the authorities and certain public sensibilities with its political muckraking, coupled with racism and anti-Semitism, was constitutionally impermissible under the First Amendment. While that decision did not overturn precedent, the court’s indulgence in First Amendment analysis to invalidate the measure conflicted with a prior ruling from Minnesota in Minneapolis and St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916). That was a federal workers’ compensation case in which the court rejected the contention that the Seventh Amendment right to a jury trial applies to states in civil cases arising under federal statues, noting that it was “beyond cavil” that the provisions of the Bill of Rights apply to the states, a proposition that the Near case disregarded in holding the Minnesota “public nuisance” under which the case was brought invalid. That principle, later known as selective incorporation of federal constitutional provisions to the states, spurred by Near on the heels of some post-World War I protester cases, was consecrated at the end of that decade in United States v. Carolene Products, 304 U.S. 144 (1938), in which the court, strangely in a footnote, recognized that doctrine.
Although hardly as frequent as at the federal high court pantheon, reversals of precedent have dotted the jurisdictional landscape in Minnesota, too. Most of these matters have involved tort claims, and, with limited exceptions, have been unanimous rulings.
One striking and important occasion in which stare decisis has been discarded concerned the doctrine of sovereign immunity, barring tort claims against governmental entities. In Nieting v. Blondell, 235 N.W.2d 597 (1975), the age-old tenet was abrogated in allowing a third-party claim in an automobile accident case alleging negligent design, maintenance and construction by the state of freeway barriers. The court overturned the “court-made” doctrine dating aback a century of state immunity to tort claims.
Abrogation of sovereign immunity in the Nieting case came five years after Johnson v. Callisto, 176 N.W.2d 757 (1970), in which the court “declined” to abrogate the principle, deferring to the Legislature “if there is to be a change.” But since the Legislature “has failed … to alleviate the hardships” imposed by sovereign immunity, the tribunal did so, in one with the “modern trend in this country” to disregard the doctrine, either by statute or judicially.
Barring suits for injury against the state results in wrongdoing that cannot be remedied, which is “in conflict” with the public interest and the public good. Therefore, the court abolished sovereign immunity, but with caveats, doing so prospectively a year later to allow the Legislature to act, and expressly preserving governmental immunity for “the exercise of discretionary function or legislative, judicial quasi-legislative, and quasi-judicial functions.”
Another immunity precedent was overturned in Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980), of a consolidated litigation raising the issue whether children could assert tort claims against parents. A dozen years earlier, the court had abolished the doctrine of parental immunity from suits by their children in Silesky v. Kelman, 161 N.W.2d 631 (1968), subject to a pair of exceptions for matters involving “reasonable parental authority” or “ordinary parental discretion.”
But in Anderson the court, with one dissent, viewed application of these “well intentioned” exceptions to be “very difficult because their precise scope is by no means clear.” In order to avoid “troublesome questions,” the court chose to “cast aside the Silesky exceptions” and replace them with a “reasonable parent” standard, which “adequately protects functions which are parental in nature.”
An earlier renouncement of stare decisis occurred in Johnson v. Chicago, Burlington, and Qung R.R. Co., 66 N.W.2d 763 (1954), in which the court overturned its refusal to accept the principle of forum non conveniens. The case was brought in Minnesota by a Nebraska railroad employee to recover from injuries sustained while working in Nebraska.
The railroad’s effort to dismiss the case on grounds of the inconvenience of the forum ran into the obstacle of prior case law dating back to 1930. In Boright v. Chicago, R.I. & Ry. Co., 230 N.W. 457 (1930), the court had rejected the doctrine.
Because the rule was “no longer adaptable to the changed conditions of our society,” the court invoked the doctrine of forum non conveniens and applied it to dismiss the case. In recognizing the principle, it permitted trial courts to “exercise their discretion” in refusing to hear cases brought by nonresidents if “it would be more equitable that the [case] be tried … elsewhere than here.”
The court also departed from prior case law regarding the statute of limitations for no-fault underinsured motorist claim in Oanes v. Allstate Ins. Co., 617 N.W.2d 401 (Minn. 2000). Setting aside four of its own cases and one of the Court of Appeals over the prior 14 years, the court held that the limitations period for a UIM claim ran from the date of the settlement with or judgment against the tortfeasor. This overruled precedent that the period to pursue the claim runs from the time of the underlying accident, a request that may have “potentially disastrous impact” because the statutory six-year period for UIM benefits could expire before the claim has been “resolved by settlement or judgment,” which a line of cases had held was necessary to invoke a UIM claim. Eschewing stare decisis, the court concluded that the “better rule is that UIM claims accrue and the statute of limitations begins to run” from the date of settlement or judgment of the underlying claim. The cases for setting aside precedent was that the prior request, which could have a statute of limitations runs on a claim even before it was ripe, was “inconsistent with our sense of justice.”
A more subtle, but nonetheless unmistakable departure from precedent occurred with the birth of the right of common law privacy in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). While the court had never previously refused to recognize such a claim, a number of its decisions and those of the Court of Appeals had rejected privacy claims, either directly or indirectly.
But confronted with the alleged unauthorized distribution of embarrassing photographs of a pair of women, the court exercised its “power to recognize” new common law principles. Feeling that the common law must also evolve” to carry out the obligation that there be a “remedy for all wrongs,” the court held that the common law of privacy was an “interest worthy of protection,” a view that was challenged by two dissenting judges. The privacy principle, however, lost most of its potency five years later when the court in Bodah v. Lakeville Motor Express, 663 N.W.2d at 550 (Minn. 2002) limited the tort to widespread distribution of private data to the public at large.
These cases reflect that while potent, precedent is frequently cast aside in favor of more liberal leanings, unlike the current contretemps over conservative-oriented departures from stare decisis.
Six Factors for Reversal of Precedent
- Constitutional law decisions more susceptible.
- If case was “wrongly decided.”
- The “quality of the reasoning.”
- The “workability” of the prior case.
- Subsequent “different” rulings and other developments.
- The “reliance” on the previous case.
Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
RELATED: More Perspectives columns