Yes, The Supreme Court Has Reversed A Precedent Based Entirely On Its Wrongness
During oral arguments in Dobbs, the Solicitor General had to hold a difficult line: the Supreme Court should not overrule a case simply because it was wrong. Justice Alito highlighted this position with a devastating line of questions.
JUSTICE ALITO: Is it your argument that a case can never be overruled simply because it was egregiously wrong?
GENERAL PRELOGAR: I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case.
At this point, Justice Alito raised the obvious rejoinder:
JUSTICE ALITO: Really? So suppose Plessy versus Ferguson was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?
The answer should be, of course it would be sufficient. But the SG could not take that position. Doing so would undermine the federal government’s insistence that wrongness is not sufficient to overrule a precedent.
GENERAL PRELOGAR: It certainly was egregiously wrong on the day that it was handed down, Plessy, but what the Court said in analyzing Plessy to Brown and Casey was that what had become clear is that the factual premise that underlay the decision, this idea that segregation didn’t create a badge of inferiority, had been entirely mistaken.
In other words, the grounds for overruling Plessy only became clear in the five decades after the case. Huh? Plessy concluded that segregation didn’t create badges of inferiority. But Jim Crow demonstrated that segregation did in fact create badges of inferiority. It took five decades, apparently, to demonstrate that separate was not equal. Much to my surprise, Justice Breyer also articulated this exact same perspective.
JUSTICE BREYER … Plessy was wrong when decided, but, just a minute, also remember Plessy said that separate but equal was a badge of inferiority. No, they said, it isn’t. Well, all you have to do is open your eyes and look at the south, my friend, and you will see whether it was or it wasn’t in 1954.
This position isn’t c
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