In this chapter we will attempt to ascertain some of the characteristics of the overruling and overruled cases. Although we will mainly examine the overruling and overruled cases themselves, at times we will also compare these cases with the non-overruling and the non-overruled cases. We will both present descriptive data and test hypotheses.

THE AGES OF THE OVERRULED PRECEDENTS

As we indicated in Chapter 2, Ulmer discovered that the Supreme Court's 11- to 20-year-old decisions were more likely to be overruled than those of any other age. He also found that only 3 percent of the overturned precedents exceeded 95 years of age. Blaustein and Field, whose study covered the Court through the 1956 term, found that the mean life-span of overruled cases was 24 years and the median life-span was 17 years.

We inspected the ages of the 154 overruled precedents of our study and discovered that the most frequently overruled decisions were 0 to 10 years old (26.6 percent), followed by those decided 11 to 20 years previously (23.4 percent). (See Table 4.1.) In other words, half the overruled decisions survived less than 21 years. (Ulmer's comparable proportion is 64 percent.) We also found that 6.4 percent of the overturned cases (10 cases) were over 90 years old. (Ulmer's comparable figure is 3 percent, or 3 cases.)

The conventional wisdom does not specify an age at which precedents become sacrosanct. Nonetheless, we certainly feel safe in assuming that cases decided in the nineteenth century and earlier qualify in this regard. Inspection of the list of overruled decisions in Appendix I shows that slightly more than 10 percent of them predate 1900 (16 of 154).

Although stare decisis is a fundamental part of the legal model, up to now no one has examined it empirically in a comprehensive study. Doctrinal and philosophical studies abound, of course. But we found only four published empirical articles on this topic. Not only are some of the findings of these four studies open to question, but the authors of these studies failed to agree on their list of overruling and overruled cases. One of the four studies used the list collected by the Congressional Research Service, but this list is unreliable, mainly because its compilers failed to specify the criteria they employed to determine whether a given case ought to be placed on the list. We compiled our own list of cases covering a period of 46 terms – the Vinson, Warren, and Burger Courts, and the first 6 terms of the Rehnquist Court. We also listed the cases these overturning cases altered. For someone who has not conducted research on this topic, it might appear easy to identify the overruling and the overruled cases. This is not true. We had to formulate rules for the selection of cases and determine whether a given case conforms to the rules or not.

We first ascertained some of the characteristics of the overruling and overruled cases. We discovered that half the overruled decisions survived less than 21 years, while approximately 10 percent antedated 1900. Of the four Courts we inspected, the Warren Court overturned the most recent precedents and was most likely to overturn its own precedents. We also found that older precedents tended to be overturned by a much larger vote than newer precedents.

As the previous chapters indicate, our study concerns the cases that altered precedent and the precedents that were altered. Researchers studying stare decisis would not necessarily examine these cases. They might, for example, investigate the cases that followed precedent, or those in which one of the parties asked the Court to overturn precedent. The first enterprise would be exceedingly difficult to undertake because it is not easy to distinguish between the citation of a precedent and adherence to it. Even Shepard's Citations, the most authoritative source of this information, does not set forth the guidelines it uses to assemble its list. The second venture would entail an examination of written briefs over a period of time. This would depend on access to the briefs themselves and is also difficult and time consuming. How, for example, should the consequences of a litigant's request to overturn precedent be determined? What about cases overturned even when no litigant so requests?

Both kinds of research might be worth doing. We, however, chose a different path: cases that formally alter precedent. In choosing this course, our initial problem is to select a list of overruling and overruled cases.

As indicated in Chapter 2, Banks and Epstein turned to the Congressional Research Service (CRS) to obtain a list of overturned and overturning cases. This list is unreliable, however, for one fundamental and four ad hoc reasons. Fundamentally, those who compiled it failed to indicate the guidelines which they used and which others could follow to determine the accuracy of the list.

In this chapter we will survey the empirical literature concerning the alteration of precedent on the United States Supreme Court. Because it is exceedingly difficult, if not impossible, to evaluate claims of knowledge when precise measures are not used, we will examine only the quantitative literature.

ULMER'S STUDY

Four people have conducted empirical studies of precedent: S. Sidney Ulmer, John R. Schmidhauser, David J. Danelski, and Christopher P. Banks. Ulmer, Schmidhauser, and Danelski are prominent political scientists, while Banks was a Ph.D. candidate in political science at the time he published his analysis. Ulmer, one of the three most important pioneers in the scientific study of judicial behavior, investigated the overruling decisions from the beginning of the Court through the 1957 term. He defined a decision as “overruled”: 1) “if the majority opinion expressly so states” 2) if a justice so states in another opinion or in his outside writings; 3) if the Court reporter cites the case as overruled in the case summary; or 4) if Shepard's Citations lists the case as overruled. Ulmer's list contains 81 overruling cases. These 81 cases overturned 103 decisions.

The following are the major findings of Ulmer's study:

The infrequency of overruling decisions. Ulmer concluded that precedents are rarely overruled. He pointed out that since 1880 the Supreme Court had decided more than 55, 000 appellate decisions. The 65 decisions that he identified as overturned since 1880 comprise only one-tenth of 1 percent of the total. This result does not surprise us. Small groups that meet regularly usually solve similar problems in similar ways. To do otherwise would greatly increase decisionmaking costs.

In most fully argued and fully decided cases the justices vote at least three times. The first vote, cast in secret conference, determines whether the Court will hear the case. During the period of our study, about 75 percent of the cases heard by the Supreme Court came to the Court via a petition for a writ of certiorari (hereinafter cert), while the remaining cases, with few exceptions, arrived via a petition for a writ of appeal.

If the Court votes to grant cert, the case is scheduled for oral argument. After oral argument the justices again meet in conference to decide whether to reverse or to affirm the decision of the lower court. This vote is called the original vote on the merits. It is not a permanent vote, for any of the justices may change their vote at any time prior to the announcement of the Court's decision.

The final vote on the merits determines whether the decision below is, in fact, affirmed or reversed. This vote is cast by the justices during the course of their writing or joining the various opinions and can be ascertained by reading the published reports of these opinions.

Why do the justices on the U.S. Supreme Court vote they way they do? In an attempt to answer this question scholars have advanced two major models of decision making: the legal and the attitudinal models. In Chapter 7 we will test one element of the legal model – adherence to precedent. In this chapter we describe the attitudinal model and determine the extent to which it explains the justices' votes in the overruling cases.

The attitudinal model possesses two attractive features. First, it readily lends itself to testing. Second, the testing already conducted shows that this model can predict and explain the justices' votes.

Both the legal and the attitudinal models purport to explain the justices' votes and aspire to do so simply and parsimoniously. Neither model claims to represent reality. They focus instead on a set of crucial variables that presumably explain the behavior in question. Note the tension between the goals of parsimony and explanation. Extremely complex models, though perhaps more valid and reliable, are not useful because it is axiomatic that the more variables one uses the more one can decipher. Thus, for example, one arguably can explain every judicial decision on the basis of its facts and the relevant legal provision(s) at issue. But such an idiosyncratic focus would destroy a model's utility. Better to employ a handful of variables that explain a high percentage of the behavior.

THE ATTITUDINAL MODEL

The first comprehensive attitudinal model was the work of political scientist Glendon Schubert. On the basis of research done by psychologist Clyde Coombs, Schubert argued that the stimuli presented by the cases and the justices' policy preferences could be ordered along ideological dimensions.

In a very real sense this whole inquiry is anomalous: every schoolchild in this country knows that the history of the incorporation of the Indian tribes into the United States was one of great violence and illegality. If anything, the real history is worse: the popular images are of parties of armed warriors combating troops of cavalry, not the genocide of starvation, smallpox, tuberculosis, the shooting of villages full of women and children. This genocide is beyond the scope of legal history, but in reality such events reflect U.S. legal choices. The Indian wars were legal events from two perspectives. First, U.S. policymakers' decision to permit settlers to continue pushing back the Indian frontier was the most direct cause of the Indian wars. In its failure to police the frontier effectively, the federal government left a lawless void, whereas Canada, for example, almost entirely avoided Indian warfare by policing frontier whites. Second, the Indians fought wars against whites to enforce their law and protect their legal rights against white illegality. The Indian wars do not reflect “villainy” on the part of the tribes as Justice William Rehnquist asserts in a dissent (conceding “greed, cupidity, and other less than admirable behavior” on the part of the government), disagreeing with the U.S. Supreme Court's weak attempt to redress wrongs committed by the United States against the Sioux in illegally seizing the Black Hills.

Early on the afternoon of August 5, 1881, on a dusty road just outside the Rosebud Indian Agency on the Great Sioux Reservation in Dakota Territory, Kan-gi-shun-ca (Crow Dog) shot to death Sin-ta-ga-le-Scka (Spotted Tail), a Brule Sioux chief. Great confusion followed as Crow Dog was hunted down by Indian police on the orders of the reservation's chief clerk and locked in a military cell at Fort Niobara, Nebraska. The families of both men met and, following tribal law, settled the matter for $600 in cash, eight horses, and one blanket. A year later, Crow Dog, still in jail, was tried in the Dakota territorial court in Deadwood, convicted of murder, and sentenced to hang. In December 1883, the U.S. Supreme Court reversed the conviction, holding that the United States had no criminal jurisdiction over Indian tribes in “Indian country,” because the tribes, inherently sovereign, retained the right to administer their own law as an element of that sovereignty. Crow Dog returned to his people a hero and a “troublemaker” in the eyes of his Indian agent, living out his life as a traditional leader, resisting U.S. government authority until the end, even refusing to accept his allotment until the year before he died at the age of seventy-five in 1911.

Crow Dog and the origins of U.S. Indian law

Crow Dog's case captures, in one instance, the complex and unique nature of U.S. Indian law.

The legal history from Crow Dog to Kagama traces a relatively clear path: the U.S. Supreme Court interpreted federal Indian law to permit Congress to impose federal authority on Native Americans. Lower federal courts were then faced with dozens of individual problems calling for the application of this new law in a wide variety of legally, factually, and culturally complex situations.

This activity in the federal courts, however, documents only one aspect of the imposition of U.S. law on the tribes. Most of the intervention into the daily lives of Indian peoples took place beyond the reach of the Major Crimes Act – indeed, even beyond the reach of U.S. law in general – through the BIA's creation of two extralegal institutions. During the same period that the BIA was attempting to enact the Major Crimes Act, it established the “Indian police” in 1879 and the “courts of Indian offenses” in 1883. These were “police” and “courts” in name only. They could claim no legal status under either U.S. or tribal law. Rather, they were designed to perform important social control functions to force assimilation of the tribes under the authority of the BIA, through its Indian agents.

A major object of the imposition of this bureaucratic law at the reservation level was the destruction of tribal culture, including traditional law. Although the “law for the Indians” language of Indian reforms lay behind at least a part of the Major Crimes Act, the BIA resisted any idea of bringing the tribes under the applicable state and federal laws that governed white and black Americans.

The legal history of Indian–white relations in Alaska is substantially unrelated to parallel developments in the rest of the United States. While twentieth century federal Indian law often applies to Alaska in the same manner as it does to the rest of the country, nineteenth-century law did not. In fact, the major nineteenth-century federal Indian law cases had little impact in Alaska; few cases arose, both because courts came to Alaska only in 1884 and because there were so few whites. Moreover, no treaties were made with Alaskan natives, and many provisions of the Indian Trade and Intercourse Acts did not govern trade between whites and Alaska's tribes. In the nineteenth century, Alaskan natives lived under the same law as Alaskan whites. They were denied special status, either as tribal sovereigns or as wards dependent on federal protection. This reflected a deliberate decision by local whites, deferred to by federal courts and officials, who either desired to avoid the problems of the Indian law that existed in the rest of the United States or were simply unconcerned about Alaska because of its remoteness.

In order to provide a better understanding of both the history of federal Indian law and Alaska's unique situation, this chapter focuses on the legal incorporation of the Tlingit into U.S. law. The Tlingit occupied one thousand miles of coastline along the panhandle of southeast Alaska and bore most of the early impact of U.S. colonialism.

If legal scholars are not in agreement about the meaning of Crow Dog, the same cannot be said for United States v. Kagama. This case, decided on May 10, 1886, is known as the Supreme Court's first statement of the plenary power doctrine, the principle that Congress's power over Indian affairs is unlimited by treaty rights or tribal sovereignty. As one of the most important cases in federal Indian law, Kagama stands for principles opposite those advanced in Crow Dog and Worcester. Kagama left Indian tribes mere “wards” of the federal government, totally dependent on the will of Congress, which could assert its political power even to their termination as tribes and the expropriation of their lands without compensation. Kagama is the judicial embodiment of Congress's policy of forcing the assimilation of the tribes, recognizing none of their sovereignty, none of their status as domestic nations.

Kagama and Crow Dog are closely linked, not only as products of the same Court, a little more than two years apart, but also doctrinally in that Kagama represents the judicial approval of the Major Crimes Act, the congressional restriction of the sovereignty of tribal law that the Court had recognized in Crow Dog. The Court itself in Crow Dog specifically stated that Congress had the power to extend federal criminal law in Indian country if it chose to do so, citing congressional extension of federal liquor laws to Indian country without the consent of the tribes in United States v Forty-three Gallons of Whiskey (1876)..

The foundational case in federal Indian law is Worcester v. Georgia (1832). Known collectively with Cherokee Nation v. Georgia (1831) as one of the “Cherokee cases,” it has been the subject of much analysis, particularly for its formulation of tribal sovereignty. The case precipitated a famous constitutional crisis when President Andrew Jackson remarked, “John Marshall has made his decision, now let him enforce it,” and refused to use federal power to protect Cherokee rights against Georgians. This conflict itself illustrates the core contradiction in Indian law cases during most of the nineteenth century: federal Indian law evolved in a legal battle with the states over federal control of Indians and Indian lands, with tribal sovereignty or the legal rights of native people often not even of secondary concern. Hence, Chief Justice John Marshall's famous pronouncements of Indian rights were virtually meaningless to the tribes.

All modern legal discussions of the Cherokee cases omit consideration of the first such case, Corn Tassel, which, although known to legal scholars because it establishes the context for the more famous cases, is never seen as having doctrinal meaning. In addition to demonstrating the wholesale federal abandonment of treaty obligations toward the Cherokee, the case represents a cowardly cession of both federal power and tribal sovereignty to the states. This action dominates early-to mid-nineteenth-century Indian law.

Corn Tassel's case

All of the Cherokee cases arose from the same tragic violation of tribal rights.

The contradiction between tribal sovereignty and a colonial model of imposed law was nowhere more publicly debated than in U.S. policy toward the Indian nations in eastern Oklahoma. The Cherokee, Creek, Choctaw, Chickasaw, and Seminole – the Five Civilized Tribes – all had purchased their lands in fee simple from the government of the United States in the 1830s (1850s in the case of the Seminole) as a part of complex treaty negotiations accompanying the surrender of their southeastern lands. Even Andrew Jackson had argued that only by moving beyond the boundaries of the United States to the Indian Territory could the tribes be “perpetuated as Nations and enjoy the right of living under their own law.” The tribes' right to maintain their own laws forever was deeply embedded in the consciousness of the Indian people, who all knew by the time of removal that only through strong defense of their traditions would they survive.

All of these tribes, following the Cherokee model, constituted themselves as “nations” in the West, and that usage became common in the white press and in government relations with them. The question of tribal sovereignty that later emerged in Crow Dog had already been settled in these Indian nations. The state's greed for tribal lands and Andrew Jackson's “Indian removal” policy therefore indirectly reinforced mid-nineteenth-century tribal sovereignty in three ways: first, the Five Civilized Tribes, as well as other eastern tribes, acquired political experience in dealing with the United States that they used as the theoretical foundation for their nations in the West, not only calling themselves “nations” but getting treaties from the United States that recognized that status.

Although the Supreme Court's holding in Crow Dog was a striking recognition of the Brule's retention of tribal law as an element of tribal sovereignty, whites deliberately misrepresented the case as a simple one of factional politics and murder, thereby demeaning all elements of the Brule Sioux society and culture, including their law. Accompanying a parallel attempt to discredit the tribal laws of the Indian nations in Oklahoma, the BIA successfully created a brutal image of the tribal law of reservation Indians. While the Indian nations had gone to great lengths to establish the legitimacy of their legal orders in relation to the American nation, the same was not true for the tribes in the West, who remained independent and carried on traditional ways in their ancestral lands. Crow Dog's Brule people were among these so-called wild tribes.

In ex parte Crow Dog, the U.S. Supreme Court reversed Crow Dog's conviction for the 1881 shooting death of his chief, Spotted Tail. The court did not address the substantive grounds of the case but held that, following Worcester, Indian tribes retained the right to their own tribal law as an inherent attribute of sovereignty; therefore, the courts of the United States lacked criminal jurisdiction over crimes committed between Indians in Indian country. By all accounts, this decision aroused such a popular outcry that Congress was compelled to enact the Major Crimes Act of 1885 extending federal jurisdiction to major felonies occurring between Indians in Indian country. The case never comes to mind without at least an unconscious thought that the holding allowed a killer to escape punishment, perpetrating an injustice that a popular reaction caused Congress to remedy through the imposition of federal law.