It’s extremely rare for the U.S. Supreme Court to overturn one of its own decisions. Of the more than 25,500 decisions handed down by the Supreme Court since its creation in 1789, it has only reversed course 146 times, less than one-half of one percent.
That’s because the legal concept of precedent has played such a central role in common law systems for “at least 1,000 years,” says David Schultz, law professor at the University of Minnesota Law School. “Precedent says that ‘like cases should be decided alike.’ It appeals to our notions of justice and fairness.”
Judges tend to defer to precedent because it encourages uniformity, predictability and consistency in the legal system, and historically the Supreme Court only overturned decisions when the original solution proved “unworkable,” or when the conditions on the ground had changed dramatically.
“Classically, you didn’t overturn precedent just because you thought that a previous Supreme Court got it wrong,” says Schultz, author of Constitutional Precedent in U.S. Supreme Court Reasoning. But that historic deference to precedent has decreased over the past century.
The following are some of the most pivotal and high-profile Supreme Court cases that were later overturned.
1. Hammer v. Dagenhart (1918)
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Schultz says that some of the first major reversals on the Supreme Court happened during the New Deal period, when Franklin D. Roosevelt and Congress passed sweeping economic and social reforms. One of those laws was the Fair Labor Standards Act (1938), which outlawed child labor nationwide. Prior to 1938, each state determined its own child labor laws.
When the Supreme Court heard Hammer v. Dagenhart in 1918, there was no nationwide ban on child labor, but there was a federal law that prohibited the interstate shipment of goods produced by child labor. A business owner in North Carolina sued the government because he wanted to employ his 14-year-old son and that prevented him from shipping his products over state lines.
In Hammer, the justices ruled for the business owner, invalidating the federal law and protecting North Carolina’s right to set its own child labor laws. “[Hammer v Dagenhart] was a pretty notorious case out there in terms of precedent,” says Shultz.
But decades later, when the Supreme Court heard a very similar case, United States v. Darby (1941), the justices openly questioned the rationale of the 1918 Court.
“The distinction on which [the 1918] decision was rested… a distinction which was novel when made and unsupported by any provision of the Constitution, has long since been abandoned,” wrote Justice Harlan Fiske Stone.
Why did the Supreme Court change course?
“Some of it was about Court personnel changing, some of it was about the Depression, and some of it was about the 1936 election that produced a landslide for FDR,” says Schultz. “The court got the message. The American people wanted more federal intervention.”
2. Minersville School District v. Gobitis (1940)
In 1940, there was impassioned debate about whether the U.S. should join the fight against Nazi Germany. In this anxious atmosphere, the Supreme Court heard the case of Lillian and William Gobitis, two children from Pennsylvania who were expelled from school when they refused to salute the flag. The Gobitis family were Jehovah’s Witnesses and their religion prohibited it.
In an 8-1 ruling, the justices ruled 8-1 against the Gobitis family, saying that "national cohesion" was "inferior to none in the hierarchy of legal values," and that national unity was "the basis of national security." Religious expression, in other words, took a back seat to patriotism.
But just two years later, after the U.S. was at war with both Germany and Japan, the Supreme Court issued the opposite ruling in a nearly identical case.
In West Virginia State Board of Education v. Barnette (1943), more Jehovah’s Witnesses were expelled from school after they refused to salute the flag. But this time, the justices ruled 6-3 for the family’s right to freely express their religious beliefs.
“That’s a pretty dramatic reversal,” says Schultz. “The court issued what was an incredibly unpopular opinion during a war—that you can’t require people to salute the flag. But it was also one of the most beautifully written opinions I’ve ever read.”
Writing for the majority, Justice Robert Jackson wrote, “If there is any fixed star in our constitutional constellation, 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.”
Schultz wonders if the rapid about-face had something to do with the atrocities committed by Germany based on religious persecution. “Maybe that’s what shakes up the Court, the realization that we can’t be Nazi Germany.”
3. Plessy v. Ferguson (1896)
In terms of decisions that changed the landscape of American life, Brown v. Board of Education of Topeka (1954) tops the list. Brown famously overturned the 1896 case of Plessy v. Ferguson, in which a very different Supreme Court blessed the segregationist doctrine of “separate but equal” as constitutional.
When the Court heard Brown, it was armed with decades of social sciences research proving the damaging effects of segregation on Black schools and Black students. In a unanimous decision, the justices ruled that the doctrine of “separate but equal” was in clear violation of the Equal Protection Clause of the 14th Amendment.
“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority,” wrote Chief Justice Earl Warren in his landmark opinion. “Any language in Plessy v. Ferguson contrary to this finding is rejected.”
4. Betts v. Brady (1942)
When Smith Betts was arrested for robbery in Maryland, he didn’t have any money to pay for a lawyer, so he asked the court to provide one. Under Maryland law, criminal courts only had to provide counsel for “indigent” defendants in cases of rape or murder, not robbery. Betts, forced to defend himself in court, lost his trial and was sentenced to eight years in jail.
Betts appealed to the Supreme Court that the 6th Amendment and the 14th Amendment guaranteed him a right to a fair trial, and that Maryland’s decision not to provide him with a defense lawyer was unconstitutional. The Court disagreed, ruling 6-3 that there is no such “right” to counsel in all criminal cases.
Justice Hugo Black was in the minority that sided with Betts, and in his dissenting opinion in 1942 stated that defendants unable to pay for a lawyer are more likely to be convicted even if they’re innocent, concluding that “[t]he right to counsel in a criminal proceeding is ‘fundamental.’”
More than 20 years later, Justice Black got a second chance to address the issue. The facts of Gideon v. Wainwright (1963) were almost identical to Betts with another indigent defendant denied counsel in a robbery case. This time, the justices ruled unanimously that the constitutional guarantee of a fair trial absolutely included the right to counsel for those who couldn’t afford their own. Justice Black wrote the opinion, poking holes in the reasoning of Betts:
“The fact is that, in deciding as it did—that ‘appointment of counsel is not a fundamental right, essential to a fair trial’—the Court in Betts v. Brady made an abrupt break with its own well-considered precedents. In returning to these old precedents… we but restore constitutional principles established to achieve a fair system of justice.”
5. Bowers v. Hardwick (1986)
In the early 1980s, several U.S. states criminalized homosexuality, making it a crime for two men to have consensual sex in the privacy of their home. In Bowers v. Hardwick (1986), a Georgia man challenged the constitutionality of the state’s “anti-sodomy” law as violating his privacy and fundamental rights.
In a 5-4 decision, the Supreme Court ruled that “[t]he Constitution does not confer a fundamental right upon homosexuals to engage in sodomy,” and that precedents set by previous Supreme Court decisions concerning marriage and family—like the 1967 case of Loving v. Virginia, which invalidated state laws against interracial marriage—had nothing to do with this case.
What’s clear to Supreme Court observers like Schultz is that the justices in the early 1980s were influenced by the prevailing public opinions of their time, which were not supportive of L.G.B.T.Q. rights.
“The Court is supposed to be above politics and not affected by public opinion,” says Schultz. “But given the fact that Court members are appointed by presidents indirectly elected by the people, and confirmed by a Senate directly elected by the people, it would be naive to think that the Court is completely indifferent to public opinion.”
By the 2000s, both public opinion and the law had changed concerning gay rights. Most states had repealed their anti-sodomy laws and other countries had come out in support of gay rights. When the Supreme Court heard Lawrence v. Texas in 2003, the justices returned a very different verdict.
“[Gay and lesbian peoples’] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Anthony Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
6. Austin v. Michigan Chamber of Commerce (1990)
The Supreme Court has been asked several times to weigh in on the influence of money in politics, and it has flip-flopped on the issue of whether corporations should be allowed to endorse candidates just like individual citizens.
In 1990, the Court heard Austin v. Michigan Chamber of Commerce, in which the Michigan Chamber of Commerce, a nonprofit corporation, wanted to use money from its general funds to support a candidate for state office. In that case, the justices ruled against the Chamber of Commerce by upholding a Michigan law that prohibited corporations from using their money to support or oppose political candidates.
Then, in 2003, the Court heard McConnell v. FEC (Federal Elections Commission) which challenged the validity of the so-called McCain-Feingold bill. That bill, also known as the Bipartisan Campaign Reform Act of 2002, put a ban on unrestricted “soft money” contributions from corporations, and restrictions on political ads funded by corporations within 60 days of an election.
Again, the justices ruled against the corporations in McConnell, writing that the government had a legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption."
But then came Citizens United v. FEC (2010). In a controversial 5-4 decision, the justices overturned portions of their previous decisions and ruled that campaign donations and political advertising were forms of free speech, and the government should not be in the business of censoring free speech, regardless of who pays for it.
“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves,” wrote Justice Anthony Kennedy.
“Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.”
7. Baker v. Nelson (1972)
In 1970, Jack Baker and Michael McConnell applied for a marriage license in their home city of Minneapolis, but were turned away because they were a same-sex couple. They appealed their case to the Minnesota Supreme Court, but were told that marriage “is a union of man and woman,” an institution “as old as the book of Genesis.”
So the men appealed their case, Baker v. Nelson, all the way to the Supreme Court, which rejected their argument for the legalization of same-sex marriage in 1972 with a single-sentence order: “Appeal from Sup. Ct. Minn. dismissed for want of a substantial federal question.”
Decades passed, and slowly attitudes about same-sex marriage changed. In 2003, Massachusetts became the first state to legalize same-sex marriage, followed by California, New York, New Mexico and Oregon in 2004. Over the next decade, more states legalized same-sex marriage while others passed constitutional amendments “banning” the practice.
In 2015, the Supreme Court agreed to hear Obergefell v. Hodges, which was brought by several same-sex couples who had been denied marriage licenses by state bans in Ohio, Michigan, Kentucky and Tennessee. Unlike 1972, when the Court saw no constitutional protections for same-sex couples, the justices came to the opposite conclusion in Obergefell.
“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” wrote Justice Anthony Kennedy. “The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”
In his dissent, Justice Antonin Scalia called the decision “a threat to American democracy” and insisted that matters like same-sex marriage should be decided by the voters in individual states, and not “legislated” by the Supreme Court.
8. Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992)
There are few issues in America as divisive and passionately argued as abortion, pitting the “right to life” against a woman’s right to choose. The Supreme Court has weighed in several times on this contentious topic, most recently in 2022 with a landmark verdict that overturned decades of “settled law” on abortion rights.
In the 1973 case Roe v. Wade, the justices ruled in an 8-2 decision that a woman’s right to an abortion falls within the “right to privacy” contained in the Due Process Clause of the 14th Amendment. In its ruling, the court laid out different standards for first, second and third trimester pregnancies, allowing states to regulate abortion once a fetus reaches “viability.”
In the late 1980s, Pennsylvania and other states passed laws requiring women to get “informed consent” from a husband or a parent (if a minor) before receiving an abortion, and only after a 24-hour waiting period. Planned Parenthood sued, arguing that the state laws unconstitutionally infringed on the rights guaranteed by Roe.
In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the justices narrowly affirmed Roe 5-4 but allowed many of the state restrictions to stand. One of the main reasons why the Court didn’t strike down Roe entirely in 1992 was the concept of stare decisis, that a court should adhere to precedent in its decisions.
“Reliance becomes a very important principle in Casey,” says Schultz. “Justice Sandra Day O'Connor writes that even if we thought that Roe was wrongly decided, a generation of women have come of age relying upon Roe and the ability to control their reproductive future.”
Then came Dobbs v. Jackson Women’s Health Organization (2022), in which the justices ruled 6-3 to overturn both Roe and Casey in a decision that openly rejected the legal precedent set by the previous cases.
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority,” wrote Justice Samuel Alito. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Schultz says that in the early 2020s, the Court’s approach to precedent signaled “a pretty dramatic shift” from its historical stance. “It used to be all about reliance, consistency and uniformity, where the current Court is much more willing to say, ‘We think they were wrong and we’re going to reverse it.’”
