Narrowing Precedent in the Supreme Court

52 Pages Posted: 17 Nov 2014

See all articles by Richard M. Re

Richard M. Re

University of Virginia School of Law

Date Written: November 14, 2014

Abstract

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice — often called “stealth overruling” — is widely condemned as deceptive, as well as contrary to stare decisis. On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance. As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible — including frequently overlooked decisions by the Court’s more liberal members. Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice — and a good thing, too.

Keywords: precedent, stare decisis, Supreme Court decision-making, Roberts Court

JEL Classification: K10, K40

Suggested Citation

Re, Richard M., Narrowing Precedent in the Supreme Court (November 14, 2014). Columbia Law Review, 114 Colum. L. Rev. 1861 (2014), UCLA School of Law Research Paper No. 14-20, Available at SSRN: https://ssrn.com/abstract=2524663

Richard M. Re (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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