When requested throughout a 2022 appearance at the University of Pennsylvania in regards to the opinions of which she was most proud, Justice Elena Kagan cited her 2015 opinion in Kimble v. Marvel Entertainment, LLC as one she had “considered quite a bit through the years.” As a authorized matter, the case was a comparatively obscure one, arising from a dispute over the royalties from the patent for a Spider-Man toy. The inventor of the toy requested the court docket to overrule Brulotte v. Thys Co., a 1964 choice holding {that a} patent holder can’t cost royalties for the usage of his invention after the patent expires.
By a vote of 6-3, the Supreme Court docket left Brulotte in place. Kagan’s opinion for almost all is maybe greatest remembered for its dialogue of stare decisis, the precept that courts ought to usually not overturn their earlier rulings except there’s a excellent purpose to take action. Kagan referred to as stare decisis “‘a basis stone of the rule of regulation.’” And she or he concluded: “What we will determine, we will undecide. However stare decisis teaches that we must always train that authority sparingly.”
In her dialogue of Kimble on the College of Pennsylvania, Kagan advised the viewers that her opinion “dedicated me to quite a bit by writing it.” Certainly, since that 2015 choice, Kagan has been maybe the staunchest defender of precedent on the court docket.
For instance, within the 2017 case of Janus v. American Federation of State, County, and Municipal Employees, the court docket – in a choice by Justice Samuel Alito – held that authorities workers who’re represented by, however don’t belong to, a union can’t be required to pay a payment to cowl the union’s price to barter a contract that applies to all workers. That call overruled the 1977 choice in Abood v. Detroit Board of Education, holding that such charges didn’t violate the First Modification.
Kagan dissented, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. “Not often,” Kagan wrote, “if ever has the Court docket overruled a choice—not to mention one in all this import—with so little regard for the standard rules of stare decisis.”
In 2019, in Knick v. Township of Scott, the court docket dominated {that a} property proprietor can carry a federal declare {that a} native city ordinance violates the Fifth Modification’s ban on taking personal property with out simply compensation when the federal government takes the property. The court docket overturned its 1985 choice in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County, holding {that a} property proprietor should first search compensation from the state as an alternative.
Kagan wrote the dissent, which was joined by her fellow Democratic appointees. She emphasised that in Franchise Tax Board of California v. Hyatt, one other current choice reversing the court docket’s prior precedent, Breyer’s dissent had “concluded: ‘As we speak’s choice can solely trigger one to marvel which instances the Court docket will overrule subsequent.’ Nicely,” Kagan stated, “that didn’t take lengthy. Now one could marvel but once more.”
Not all the selections by which Kagan voted in opposition to overruling precedent divided strictly on ideological traces, nonetheless. In 2018’s South Dakota v. Wayfair, the court docket – in an opinion by Justice Anthony Kennedy, joined by Ginsburg, Alito, and Justices Clarence Thomas and Neil Gorsuch, held that out-of-state sellers with none bodily presence in a state can nonetheless be required to gather taxes on gross sales made inside the state. In so holding, the bulk overruled its 1992 choice in Quill Corp. v. North Dakota. “Although Quill was unsuitable by itself phrases when it was determined in 1992,” Kennedy reasoned, “since then the Web revolution has made its earlier error all of the extra egregious and dangerous.”
Kagan (together with Breyer and Sotomayor) joined a dissent by Chief Justice John Roberts. He wrote that Congress, reasonably than the courts, ought to make any modifications “with the potential to disrupt the event of such a vital section of the economic system.”
Kagan’s break up from the opposite Democratic appointees was even sharper two years later, in Ramos v. Louisiana, by which Gorsuch – joined by Ginsburg, Breyer, Sotomayor, and Justice Brett Kavanaugh, with Thomas agreeing with the consequence – wrote for almost all in holding that the Sixth Modification requires a unanimous verdict to convict a defendant of a severe offense.
Alito dissented, in an opinion that Roberts joined in full and Kagan joined largely. He argued that the court docket was overruling its 1972 choice in Apodaca v. Oregon, which upheld the usage of nonunanimous verdicts in state prison trials. Alito stated that he “wouldn’t overrule Apodaca. No matter one could take into consideration the correctness of the choice, it has elicited huge and completely cheap reliance.”
Kagan’s help for, and adherence to, stare decisis has maybe reached its zenith lately, as proven within the court docket’s 2022 choice in Dobbs v. Jackson Women’s Health Organization. In that case, the court docket overturned the court docket’s landmark rulings in Roe v. Wade and Planned Parenthood v. Casey, recognizing a constitutional proper to an abortion.
A uncommon joint dissent by Breyer, Sotomayor, and Kagan criticized what they characterised as “[t]he majority’s cavalier strategy to overturning this Court docket’s precedents.”
Two years later, in Loper Bright Enterprises v. Raimondo, the court docket overturned its 1984 choice in Chevron v. Natural Resources Defense Council, holding that when a federal regulation is ambiguous, courts ought to usually defer to an company’s cheap interpretation of that regulation.
Kagan dissented, joined by Sotomayor and Justice Ketanji Brown Jackson (who was recused from Loper Vivid, which was consolidated with Relentless, Inc. v. Department of Commerce). She described the court docket’s ruling in Chevron as “entrenched precedent, entitled to the safety of stare decisis, as even the bulk acknowledges. The truth is,” she argued, “Chevron is entitled to the supercharged model of that doctrine as a result of Congress may all the time overrule the choice, and since so many governmental and personal actors have relied on it for thus lengthy.”
Kagan’s adherence to precedent has additionally led her to just accept selections from which she initially dissented when these points come up in subsequent instances. In the course of the 2025-26 time period, for instance, the court docket in Wolford v. Lopez struck down a Hawaii regulation that barred gun homeowners with concealed-carry permits from bringing their weapons onto personal property that’s open to the general public except they’ve the property proprietor’s categorical permission.
Though all three Democratic appointees dissented, Kagan didn’t be part of Jackson’s dissenting opinion, which Sotomayor joined. Jackson criticized the justices’ 2022 choice in New York State Rifle & Pistol Association v. Bruen, by which the bulk dominated that that courts ought to solely uphold gun restrictions which are “according to the Nation’s historic custom of firearm regulation.” In Jackson’s view, the court docket’s “adoption of the Bruen take a look at was a grave mistake.”
Kagan argued in her personal dissenting opinion solely that the Hawaii regulation was “a modern-day analogue of colonial and founding period legal guidelines that equally prohibited carrying firearms onto personal property with out the proprietor’s affirmative consent.” And she or he dismissed the bulk’s competition that these older legal guidelines “had a particular (although not at all unique) concern with poaching.” Quoting Bruen, she emphasised that “‘[t]he regulatory challenges posed by firearms at the moment are usually not all the time the identical as people who preoccupied’ earlier generations.”
To make sure, Kagan has voted a number of occasions to overrule the court docket’s earlier selections. However even right here, she has joined opinions explaining why overruling such precedent higher serves the precept of stare decisis. For instance, in 2015’s Johnson v. United States, she joined Justice Antonin Scalia’s opinion for almost all, which held {that a} provision of the Armed Profession Felony Act permitting courts to extend a defendant’s sentence if he had dedicated any felony that “includes conduct that presents a severe potential threat of bodily harm to a different” violates the Structure’s assure of due course of as a result of it’s too imprecise. In so holding, the court docket overruled its selections in James v. United States and Sykes v. United States, by which “the Court docket rejected recommendations by dissenting Justices that the” provision on the middle of the case “violates the Structure’s prohibition of imprecise prison legal guidelines.”
Within the majority’s opinion, Scalia wrote that the case was the primary one “by which the Court docket has acquired briefing and heard argument from the events about whether or not the” provision on the middle of the case was unconstitutional – which, he stated, signifies that the Supreme Court docket is “‘much less constrained to observe precedent.’” “Standing by [its prior decisions] would undermine, reasonably than promote, the objectives that stare decisis is supposed to serve,” Scalia added.
And on the identical day because the court docket’s ruling in Johnson, Kagan joined Kennedy’s opinion for almost all in Obergefell v. Hodges, which acknowledged a proper to same-sex marriage. That call expressly overruled Baker v. Nelson, which Kennedy described as “a one-line abstract choice issued in 1972, holding the exclusion of same-sex {couples} from marriage didn’t current a considerable federal query.”
The next yr, in Hurst v. Florida, Kagan joined a choice by Sotomayor holding that Florida’s capital sentencing scheme, by which the jury renders an “advisory sentence,” however the choose makes the important thing findings required to impose the demise penalty, violates the Sixth Modification proper to a jury trial. In reaching that conclusion, the court docket overruled the Supreme Court docket’s earlier selections in Hildwin v. Florida and Spaziano v. Florida upholding the state’s capital sentencing scheme. The court docket additionally rejected the state’s argument that stare decisis required the court docket to uphold the scheme, calling it “unsuitable, and irreconcilable with” the court docket’s choice in Apprendi v. New Jersey, holding that juries should discover any information that improve the penalty for a criminal offense past the statutory most.
And in 2019’s Herrera v. Wyoming, Kagan joined one other Sotomayor choice overruling prior precedent – this time an opinion holding that the looking proper of the Crow Tribe of Indians underneath an 1868 treaty with america had not been extinguished when Wyoming grew to become a state in 1890. Amongst different issues, the bulk indicated that it was not possible to reconcile two prior selections.
In her 2022 look on the College of Pennsylvania, Kagan outlined why, in her view, the doctrine of stare decisis is so essential. First, she first cited the necessity for the regulation to be secure. Individuals depend on the present regulation and plan their lives round it, she emphasised. Subsequent, she contended, “judges needs to be humble” and acknowledge that different judges have come earlier than them, and that “regulation develops greatest when it develops slowly and incrementally.” Third and at last, she advised, adhering to precedent helps to “stop the court docket from turning into politicized.” If new judges be part of a court docket and shortly change the regulation, “it begins to not appear to be regulation anymore,” and the court docket as an alternative begins to look “extra like a political establishment,” she posited. “And that’s one thing,” Kagan concluded, “that the courts have to be extremely cognizant of and cautious about.”
Conservative critics have suggested that Kagan’s robust help for stare decisis stems from one other motivation: the “want to forestall an more and more conservative Supreme Court docket from overturning precedents she strongly helps.” No matter her motivation, nonetheless, it’s clear that she has made adherence to precedent a bedrock of her jurisprudence.
We are going to quickly study if this stays the case. Within the fall, in Kian v. Florida, the justices will hear oral arguments in the case of a Florida man who was convicted by a six-person jury of working as a chiropractor with a suspended license. Hamed Kian argues that he had a constitutional proper to a 12-person jury, and he has requested the court docket to overrule its 1970 choice in Williams v. Florida, which rejected a problem to that state’s six-person jury system. If previous is prologue, Kagan’s vote may show more durable to safe than Kian would possibly hope.