Narrowing Precedent in the Supreme Court
UVA Law Faculty Affiliations
“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice — often called “stealth overruling” — is widely condemned as deceptive, as well as contrary to stare decisis. On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance. As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible — including frequently overlooked decisions by the Court’s more liberal members. Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice — and a good thing, too.