The Historical (In)Accuracy of the Brandeis Dichotomy: An Assessment of the Two-Tiered Standard of Stare Decisis for Supreme Court Precedents

64 Pages Posted: 2 Oct 2007 Last revised: 22 Feb 2009

See all articles by Lee J. Strang

Lee J. Strang

University of Toledo College of Law

Bryce G. Poole

U.S. Air Force


For over seventy years, the Supreme Court has applied a two-tiered standard of stare decisis under which precedents involving constitutional interpretation are given less weight than precedents involving statutory interpretation. This two-tiered standard was first articulated by Justice Brandeis in his dissenting opinion in the 1932 case Burnet v. Coronado Oil & Gas Co. In his dissent, Justice Brandeis argued that the two-tiered standard was the historical practice of the Court, and he cited to cases he claimed supported the dichotomy. In actuality, the two-tiered standard was an invention of the twentieth century, originating in Justice Brandeis's dissenting opinion, and rooted in his legal realist jurisprudence and Progressive and New Deal sympathies.

In this Article, the authors dissect the evidence that Justice Brandeis used to support his claim and themselves evaluate the authentic historical practice of the Court. As a careful analysis of the Court's precedents reveals, the Court did not utilize the two-tiered standard at least, not until Justice Brandeis and the New Deal Court embraced it. Instead, the authors show that the authentic historical practice of the Supreme Court was to treat precedents involving constitutional interpretation the same as other types of precedents. The Court would overrule precedents only when those precedents had been undermined by one or more of six discrete factors. In all other cases, if the Court could not articulate a justification for overruling, the prior decision would be treated as binding precedent for purposes of stare decisis.

The authors' conclusion undermines one of the few articles of faith of American constitutional legal practice. Brandeis's dichotomy, stripped of its historical pedigree, loses one of its most powerful supports. What remains after the loss of its historical support is the naked normative claim that the Supreme Court should give less precedential weight to constitutional precedents. This sole remaining claim is much less powerful, as Justice Brandeis himself recognized since he used, as his primary argument, the one based on the Court's historical practice. Without this historical support, Brandeis appears more like a politician seeking to advance his political goals.

Of course, it may be the case that the normative arguments for Brandeis's dichotomy sufficiently support it, and the authors do not contest those arguments here. However, the powerful hold of Brandeis's historical claim on American legal practice despite the lack of evidence supporting it suggests that the normative arguments alone are not sufficiently robust. And, without sufficient support, Brandeis's dichotomy along with the dramatic number of Supreme Court reversals it has been used to justify becomes suspect and open to rejection.

Keywords: brandeis, precedent, stare decisis, supreme court, history, constitution, statute, new deal, legal realism

Suggested Citation

Strang, Lee J. and Poole, Bryce G., The Historical (In)Accuracy of the Brandeis Dichotomy: An Assessment of the Two-Tiered Standard of Stare Decisis for Supreme Court Precedents. North Carolina Law Review, Vol. 86, p. 969, 2008, University of Toledo College of Law Working Paper, MSU Legal Studies Research Paper No. 05-09 , Available at SSRN:

Lee J. Strang (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-2877 (Phone)

Bryce G. Poole

U.S. Air Force ( email )

Washington, DC
United States

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