UC Law Constitutional Quarterly


Tom Hardy


The Supreme Court has recently elaborated an analysis for cases in which it is asked to overturn a precedent. This special justifications analysis involves several factors, including whether the precedent has been relied upon. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Dickerson v. United States and Lawrence v. Texas, the Court has expanded the definition of reliance to include what might be called "societal reliance," as opposed to economic reliance. Commentators have criticized this expansion of the reliance factor, some arguing that it allows the Court too much power to justify any result it favors, while others argue that it allows the Court to dodge its responsibility to advance the law despite the prevailing views of society at large. This article, however, takes the view that the Court's weighing of cultural reliance has been, at least to this point, justified in light of the controversial nature of the decisions in which it has been cited. Further, the Court has consistently and responsibly balanced societal reliance alongside other factors. Finally, the actual outcomes of the cases in which the Court has cited societal reliance do not reflect the fears of either group of commentators. Instead, they reflect a Court that is more concerned with its legitimacy and careful to fully justify its decisions. In its final section, this article describes the Court's earlier approach to stare decisis as shown in a series of Supreme Court cases that established and upheld major league baseball's exemption from antitrust laws. The story of the baseball cases demonstrates that the Court considered "societal reliance" in its decisions to uphold precedents, even if it did not expressly admit to doing so. The article concludes by suggesting that the expansion of reliance to include societal reliance is a positive development, if only because it "keeps the Court honest" by forcing it to admit when it considers such reliance and to balance that reliance against other important factors.