Second Thoughts on 'One Last Chance'?

Abstract

The Supreme Court’s recent decision in Janus resolved a major First Amendment question, but the Court’s treatment of precedent is arguably even more important, as Justice Elena Kagan’s forceful dissent indicates. In short, the Court held that its own recently expressed misgivings about a precedent contributed to the justifiability of overruling the precedent. This essay explores Janus’s implications in light of the Court’s apparent adherence to “the doctrine of one last chance,” which requires the Court to give advance notice of its willingness to issue disruptive decisions. Aptly enough, the doctrine is Janus-faced in that it is both restraining and empowering. And there are plausible reasons for adhering to at least some version of the doctrine, despite the serious concerns that Kagan has raised.