In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court's own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey's association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court's capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court's impartiality, although there is reason for doubt. But underruling frustrates the dispute-resolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult.
Under-the-Table Overruling, 54 Wayne L. Rev. 1067 (2008)