This Article seeks to shed some light on a comparatively rare, but important issue in constitutional jurisprudence: Under what circumstances does the Supreme Court formally overrule one of its own significant constitutional precedents within the same judicial generation as the announcement of the precedent? This phenomenon is one part of the broader role of precedent and stare decisis in fashioning and maintaining constitutional law—albeit in part because of the modifier “significant”—there are a limited number of such cases (some three dozen where the overruled case was decided after the introduction of President Franklin Roosevelt’s Court-packing plan, roughly once every other term). All of the cases contain at least one Justice (and typically more) who participated in the overruled case. Therefore, we can observe the willingness, if any, of Justices to change their minds in situations where formal adherence to stare decisis would counsel them not to. We can also see if the Justices’ views on stare decisis and overruling have changed over time.
L.A. Powe Jr.,
Intragenerational Constitutional Overruling,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol89/iss5/5