Stephen Breyer Justice Stephen Breyer testifying in 2015. Photo: Diego M. Radzinschi/NLJ

The U.S. Supreme Court’s decision May 13 in Franchise Tax Board of California v. Hyatt seemed to open the public’s eyes to a long-running reality: The high court does sometimes overrule its own opinions and is likely to do so in the future.

By the count of a Congressional Research Service report updated last September, the court has explicitly overruled past opinions 141 times since 1851. During his confirmation hearing in 2005, Chief Justice John Roberts Jr. famously said that overturning precedents is “a jolt to the legal system,” but he added that sometimes, “there are situations when that’s a price that has to be paid.”

Whether or not the court’s 5-4 vote in the Hyatt case was one of those situations is uncertain. The majority opinion overturned Nevada v. Hall, a fairly obscure ruling that allowed states to be sued by individuals in other states. But Justice Stephen Breyer’s dissent made it clear that he and three other court liberals thought this departure from stare decisis—the doctrine that favors preserving precedents—was surely a jolt.

To overturn Nevada, Breyer wrote, “is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.” Justice Clarence Thomas, writing in the majority and defending the court’s action, declared that stare decisis is “not an inexorable command.”

If Breyer is correct, and if urging the Supreme Court to overturn its precedents becomes a flourishing practice area for lawyers, what are the strategies that need to be deployed?

Former U.S. solicitor general Paul Clement, now a partner at Kirkland & Ellis, presciently addressed that very question at a May 7 symposium sponsored by the Heritage Foundation and the Bradley Foundation. It was recorded and broadcast a few days later by the Heritage podcast SCOTUS101.

Here are Clement’s tips on how to get the Supreme Court to overturn a precedent:

>> Tread softly and don’t raise the issue on the first page: “I think about asking the court to overrule one of its cases as a kind of ‘break glass in case of emergency.’ You shouldn’t be afraid to do it, there are emergencies, but it should not be, as a general matter, your litigation strategy a first resort. I have effectively written a 60-page brief that didn’t mention the idea of overruling one of the court’s cases until about page 57, and they actually did it in that case. It just goes to show that you ought to give the court lots and lots of reasons to think that you’re right before you then say ‘oh, and this previous turn that you took in the opposite direction was not just wrong, but so manifestly wrong that you should overturn it.’”

Paul Clement Paul Clement, speaking at the Federalist Society’s 7th Annual Executive Branch Review Conference, on May 8. Photo: Diego M. Radzinschi/ALM

>> Don’t dwell on the factors that justices weigh: “There’s no particular need to wrap yourself around the axle in arguing the various factors that the court from time to time has articulated as being the basis for when it will overturn its decisions. I certainly think it’s important to nod in the direction of those factors and to cite your favorite case. Payne v. Tennessee is one that kind of nicely articulates the factors … But I think it’s a mistake to think that the court is so consistent about how it thinks about stare decisis factors that the way to really win one of these cases is to really convince them that three or four factors articulated in Payne v. Tennessee all cut in your favor. I think you can do essentially all you need to do in about three pages at the end of your brief.”

>> Play the long game: “This is particularly true with Chief Justice Roberts: Keep in mind that this is a long-term objective. Don’t think that you will necessarily overturn a precedent that is in the way of where you want to go in your first crack at the case. His favorite methodology seems to be to essentially chip away at cases in various steps so that the day that the case is actually overruled it’s really not even news … You saw this in the last couple of terms with Abood [v. Detroit Board of Education] in the public sector union context. The court chipped away on that. They had a prior case involving Illinois, where they all but overruled Abood. My goodness, by the time they overruled it last term, it was the oldest news in town. So, it pays to take the long view and have a long-term project of taking down the case that you have in your sights.”

In the cases this term that targeted precedents, including Hyatt, not all the petitioners were as subtle as Clement suggested—in part, perhaps, because of the “long game” that preceded them.

In three of them, the first-page “question presented” explicitly asked the justices to overrule past precedents: the successful Wilmer Cutler Pickering Hale and Dorr brief by Seth Waxman for the California Tax Board; the Mayer Brown brief by Paul Hughes in Kisor v. Wilkie; and the Jones Day brief by Louis Chaiten in Gamble v. United States.

In the “question presented” in Knick v. Township of Scott, Pacific Legal Foundation’s brief by J. David Breemer asked the court to “reconsider” a precedent, but by page 23 it suggested that overruling the precedent would be the correct thing to do.


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