The Volokh Conspiracy - Justices' Changes of View on Big Issues:

I'm collecting a list of cases in which Justices clearly changed their views on a high-profile subject (compared to what they had said in an earlier decision). I prefer cases where the Justice isn't just acceding to changed precedent, but changing his views on the merits. Here are the things that quickly come to my mind.

1. Justice Brennan changing his views on obscenity, from accepting an obscenity exception to the free speech principle to basically rejecting it. Compare Roth v. United States (1957) with Paris Adult Theatre I v. Slaton (1973).

2. Justice Blackmun changing his views on the death penalty, from accepting its constitutionally to rejecting it. Compare Gregg v. Georgia (1976) with Callins v. Collins (1994).

3. Justice Brennan changing his views on legislative prayer, from strongly suggesting that it was constitutional to concluding that it wasn't. Compare Abington School Dist. v. Schempp (1963) with Marsh v. Chambers (1983).

4. Justice Blackmun changing his views on state "core functions" immunity to federal legislation, from supporting such an immunity to rejecting it. Compare National League of Cities v. Usery (1976) with Garcia v. San Antonio Metropolitan Transit Authority (1985).

5. Justice Thomas changing his views on right-to-jury-trial challenges to sentencing schemes, from rejecting such challenges to providing the fifth votes to strike down the schemes. Compare Almendarez-Torres v. United States (1998) with Apprendi v. New Jersey (2000).

6. Justice Thomas generally changing his views on commercial speech, from generally endorsing fairly broad government authority over it to generally rejecting it. Compare U.S. v. Edge Broadcasting (1993) with 44 Liquormart v. Rhode Island (1996).

7. Chief Justice Rehnquist and Justice O'Connor switching sides on corporations' right to engage in independent expenditures related to candidate campaigns (Rehnquist from no to yes, O'Connor from yes to no, though O'Connor's vote might be seen as acceding to precedent). Compare Austin v. Michigan Chamber of Commerce (1990) with McConnell v. FEC (2003).

If you can think of other examples, please note them in the comments. I am not looking for supposed inconsistencies in Justices' views, or simply signs of evolution when there's no clear change of mind (as, for instance, Justice Stevens' move from being very skeptical of race preferences in his early years on the Court to being much more open to them in later years — it's possible that this simply reflected his view, whether or not it is a well-founded view, that the later preference schemes were different from the earlier ones). Rather I'm looking for situations where Justices either say that they've changed their minds, or vote in ways that clearly contradict their earlier votes (for instance, as in example 7).

Also, please name a case representing the old view and a case representing the new view; otherwise, it's too easy to make mistakes.

(link)

Tom J:

Justice Scalia accepting the "congruence and proportionality" standard for valid exercises of Congress's remedial power under section 5 of the 14th amendment, then renouncing it as an invitation to judicial policy-making. Compare Boerne v. Flores with Tennessee v. Lane (dissenting).

7.9.2005 5:47pm

OrinKerr:

I'm not sure if this counts, given the "evolving" nature of Eigth Amendment law, but Justice Kennedy voted to uphold the juvenile death penalty un Stanford v. Kentucky, 492 U.S. 361 (1989) but then voted against it this year in Roper v. Simmons.

7.9.2005 6:04pm

iocaste (mail) (www):

Justice Souter came up with the secondary effects principle for regulating pornography in Barnes, and later rejected it.

7.9.2005 6:13pm

dred (mail):

In 1936 Owen Roberts joined the five-justice majority in the Tipaldo case, which reaffirmed the holding against minimum wage in Adkins.
In 1937, Justice Roberts switched sides in West Coast Hotel v. Parrish, joining the four dissenters from Tipaldo (Hughes, Brandeis, Stone, and Cardozo) - creating a majority that overturned Adkins, thus sustaining minimum wage for the first time.

7.9.2005 6:37pm

Eugene Volokh (www):

Eric Freedman points to Justice Scalia's changing his mind on whether there's a right to jury trial as to the penalty in death penalty cases, compare Walton v. Arizona (1990) with Ring v. Arizona (2002).

7.9.2005 6:39pm

Ah - let me correct my earlier point. Souter did not so much repudiate his concurrence in Barnes as narrow it. In City of Erie v. Pap's A.M., he wrote: "Careful readers, and not just those on the Erie City Council, will of course realize that my partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes, supra. I should have demanded the evidence then, too, and my mistake calls to mind Justice Jackson's foolproof explanation of a lapse of his own, when he quoted Samuel Johnson, "'Ignorance, sir, ignorance.'" McGrath v. Kristensen, 340 U.S. 162, 178, 95 L. Ed. 173, 71 S. Ct. 224 (1950) (concurring opinion). I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late. See Henslee v. Union Planters Nat. Bank &Trust Co., 335 U.S. 595, 600, 93 L. Ed. 259, 69 S. Ct. 290 (1949) (per curiam) (Frankfurter, J., dissenting)."

7.9.2005 6:45pm

pug (mail):

I believe it wasn't until Newdowthat Justice Thomas concluded that the Establishment Clause did not apply to the states. I assume he had applied it (or, at least pretended to apply it) to the states in earlier opinion.

I believe in Walton, Justice Scalia also stated that he had changed his mind over the role mitigating evidence played in death penalty trials. Previously, he had joined opinions that required states to allow in any mitigating evidence in the penalty phase of a death penalty case. After Walton, he stated that he would no longer keep states from restricting the type of mitigating evidence presented to the fact finder.

7.9.2005 7:05pm

DSC (mail):

To pug's point, I do not believe that Thomas has changed his view on the Establishment Clause. I think that there is a careful distinction between Thomas applying the Free Exercise Clause (an individual right) to the States and the Establishment Clause (which Thomas views as a federalist clause). Most of the cases before Newdow were Free Exercise challenges, while the later have all been non-religious individuals making Establishment Clause challenges. Perhaps there is precedent out there where it would be difficult to reconcile one of Thomas' earlier votes, but as for any articulated opinion, it does not appear there is a clear change. For example, in 2002, Thomas' Zelman v. Simmons concurrence is consistent with his later Newdow concurence in judgment.

7.9.2005 7:21pm

aslanfan (mail):

Justice Blackmun publicly repudiated his vote in Bowers, but did so after he retired.

7.9.2005 7:40pm

Bob Woolley (mail):

1) Rehnquist's concurrence in San Remo Hotel this term indicates a change of mind:
" I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic. Here, no court below has addressed the correctness of Williamson County, neither party has asked us to reconsider it, and resolving the issue could not benefit petitioners. In an appropriate case, I believe the Court should reconsider whether plaintiffs asserting a Fifth Amendment takings claim based on the final decision of a state or local government entity must first seek compensation in state courts."

2) Justice Powell is known to have regretted his decision in Bowers v. Hardwick, though he did not have an opportunity to show this formally through a subsequent court decision.

"Notably, Justice Powell had voted right after oral argument to affirm the Eleventh Circuit's ruling in Hardwick's favor, but he changed his mind a few days later, providing Justice White with a narrow majority. [FN227] Powell publicly announced shortly after his retirement that his vote in Bowers was the one error he believed he had made while on the Court."
117 HVLR 1893
Harvard Law Review
LAWRENCE V. TEXAS: THE "FUNDAMENTAL RIGHT" THAT DARE NOT SPEAK ITS NAME, citing John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. (1994), at 522-24.

7.9.2005 7:47pm

John Neiman:

Ring marked changes-of-mind for two justices in addition to Justice Scalia: Justice Kennedy (though his concurrence chalks up his changed vote to a change in the Court's jurisprudence with which he didn't agree (Apprendi)); and Justice Breyer, who didn't join the majority but latched on to an Eighth Amendment theory that he (along with the Court) had previously rejected.

7.9.2005 8:40pm

rcs249 (mail):

Not sure if this counts, since I don't think he wrote an opinion in either, but Rehnquist voted against finding due process limits on punitive damages awards in BMW v Gore, and for them in State Farm v. Something-or-other.

Syd (mail):

The most spectaclar case of this happening was Justices Black, Douglas and Murphy voting with the majority in [i]Minersville School District v. Gobitis[/i] in 1940 and voting to overturn that decision in [i]W. Virginia State Board of Education v. Barnette in 1943.[/i]

7.9.2005 8:50pm

SupremacyClaus (mail):

Reversals from 1946 to 1992 are carefully and thoroughly reviewed here.

There were 328 votes in both over-ruled and over-ruling cases. Of those, 93 votes (28.4%) were in the majority in both cases. The most frequent was Brennan, with 16, then Stewart with 14 and White with 14. (p.87). The Burger court had 62% of all majority-majority votes for reversals, over-ruling itself far more than all others combined.

Overall there were 114 reversals in 46 years, most naturally of prior courts. Many were "salient" cases, according to these careful and thorough authors. Looking at these, the tendency is to increase lawyer jobs. Many of those listed in Appendix I are job neutral. These tend to support the Federal
government position, e.g. national supremacy, a few comity decisions. A large minority increase jobs. I could not find any reducing lawyer employment. If any did as an unintended consequence, I probably missed it.

7.9.2005 8:59pm

Leslie Katz (mail):

A very humorous example was the reasons of Jackson J in a WWII case about the draft. Was it Isbrandsen? Some name like that (sorry I haven't got the citation). In it, he departed from a view he'd earlier expressed as A-G (or was it S-G?) about the liability of foreigners to the draft.

In his reasons, he collected a number of earlier changes of front by judges. A couple of them I repeat from memory only (and without being sure that Jackson J actually used them in the case):

1. an English judge saying, "I am amazed that a person as intelligent as I could have said anything so foolish".

2. another English judge saying, "The matter does not appear to me now as it appears to have appeared to me then".

7.9.2005 9:53pm

Gobitis was a free exercise case, and Barnette was a free speech case. The votes in those cases are not necessarily in conflict.

DSC, I stand corrected then. It would surprise me though, if in Thomas's first Establishment Clause case on the Court, he held that the EC didn't apply to the states. Perhaps something to look into after I'm through with the Bar.

7.9.2005 10:44pm

David Bernstein (mail):

Justice McKenna voted with the majority in Lochner v. New York, voting to invalidate a ten-hour workday for bakers, then voted to uphold an eight-hour workday for all industrial workers in Bunting v. Oregon, which most people saw as implicitly repudiating Lochner, and then voted to invalidate a minimum wage law for women in Adkins v. Children's Hospital, which explicitly revived Locher. One can engage in very fine hair-splitting to explain this, but it's not easy.

Justice Harlan, in Plessy, stated famously that the "Constitution is color-blind" and knows no class or caste, but then voted to uphold a local school system that had a high school for whites but not for blacks in Cumming v. Kentucky (I think that's the right name). A student note in the U. Va. law review tried to explain this a few years ago, with some success. I think an even better explanation is that Harlan's dissent in Plessy was actually based on a "right to locomotion," with the "color-blind" stuff thrown in for effect, but not meant to be taken literally.

Alan Meese has a fine article discussing how Justice Peckham's views on antitrust evolved over the years.

The entire Court did an abrubt about face regarding anti-Chinese laundry legislation from Soon Hing v. Crowley in 1885 to Yick Wo v. Hopkins in 1886. I suspect this was an assertion of federal authority in reaction to a wave of anti-Chinese pogroms in the West in late 1885-early 1886.

7.9.2005 10:48pm

dunno:

As to no. 2, I'm not so sure that's a good example, see here under "Confronting Capital Punishment." I haven't yet read Greenhouse's book-length treatment, so there is definitely a hole in my knowledge of the subject, though this alone would seen to point to the distinct possiblity that the seeming abject reversal appears as such more because of the rhetorical flourish with which it was concluded in Collins than because of any hard change in belief.

7.9.2005 10:53pm

Kent Scheidegger (mail) (www):

Note that almost all of the modern shifts are in the direction of judicial activism. That is, the original position is that the decision is up to the people through the democratic process, and the later position is that the courts decide the issue. That is why it is so difficult for presidents to move the court in a "strict constructionist" direction. The temptation to expand one's own power is just too great.

7.10.2005 12:57am

tom f (www):

Compare Whitcomb v. Chavis, 403 U.S. 124, 153 (1971) (White, J., plurality opinion) ("arguably the losing candidates' supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own.") with Davis v. Bandemer, 478 U.S. 109, 132 (1986) (White, J., plurality opinion) (“an individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district.”).

7.10.2005 2:12am

Brian G (mail) (www):

Professor,

I was about to mention Ring when I saw you mentioned it. What I liked was how Scalia openly admitted (unlike O'Connor's laughable distinction of Bowers compared with Lawrence.) Scalia said "[s]ince Walton, I have acquired new wisdom that consists of two realizations—or, to put it more critically, have discarded old ignorance." I like the way he did that a ton.

Also, don't forget Stevens said one thing in Bakke, and another in both Gratz and Grutter.

And, notice that in all of the examples, the justice who changed his (or her) mind always went to the liberal side, and not vice-versa?

7.10.2005 5:41am

Brian: Not "liberal". Pro-government, and pro-lawyer rent seeking. The criminal cult enterprise cares about nothing and no one. It has no ideology, beyond power and money.

Even when we say, pro-government, who runs the 3 branches?

7.10.2005 12:01pm

Josiah (mail):

With regard to Gobitis, I believe Black, Douglas, and Murphy and Murphey specifically repudiating their votes in that case. So whether Barnette could be distinguished, that wasn't the reason for the vote switch.

7.10.2005 12:15pm

Mr Woolley - Thanks for setting me straight on Bowers (Powell, not Blackmun).

7.10.2005 12:54pm

James Fulford (mail):

The case referred to by Leslie Katz, above, was McGRATH v. KRISTENSEN, 340 U.S. 162 (1950), in which Jackson concurred, saying

But since it is contrary to an opinion which, as Attorney General, I rendered in 1940, I owe some word of explanation.

He then explains why he's changed his opinion, with various apposite quotations:

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, recanting views he [340 U.S. 162, 178] had pressed upon the Court as Attorney General of Maryland in Brown v. Maryland, 12 Wheat. 419. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, "The matter does not appear to me now as it appears to have appeared to me then." Andrews v. Styrap, 26 L. T. R. (N. S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: "My own error, however, can furnish no ground for its being adopted by this Court . . . ." United States v. Gooding, 12 Wheat. 460, 478. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary - "Ignorance, sir, ignorance." But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: "I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion." If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all. [340 U.S. 162, 179]

A similar case involved Salmon P. Chase, who the Legal Tender cases in 1870, declared that his own actions as Secretary of the Treasury in 1862 had been unconstitutional.

7.10.2005 2:00pm

Goober (mail):

I nominate SupremacyClaus's recent sentiment for insight of the year. Bravo.

7.10.2005 3:18pm

DelVerSiSogna (mail):

Brian G--

O'Connor decided Lawrence under the Equal Protection Clause: the statute was unconstitutional, essentially, because it irrationally discriminated between heterosexual sodomy and homosexual sodomy. That issue was not presented or decided in Bowers. How is that a "laughable" distinction?

7.10.2005 6:13pm

Ilya Somin:

A good recent example is J. O'Connor's dissent in Kelo, where she says that "economic development" takings are unconstitutional under the Public Use Clause, as contrasted with her 1984 opinion in Hawaii Housing Authority v. Midkiff, where she concluded that virtually anything is a public use (it merely had to be "rationally related to a conceivable public purpose").

7.10.2005 11:15pm

Robert Markle (mail):

In Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), the Court held that the anti-injunction provisions of the Norris-LaGuardia Act preclude a district court from enjoining a strike in breach of a no-strike obligation under a collective-bargaining agreement, even though that agreement contains provisions for binding arbitration of the grievance dispute concerning which the strike was called.

Concurring in Boys Markets, Inc., 398 U.S. 235, 255, 90 S.Ct. 1583, 1595, 26 L.Ed.2d 199 (1970), which overruled Sinclair, Justice Stewart said that “[w]hen Sinclair . . . was decided in 1962, I subscribed to the opinion of the Court. Before six years had passed I had reached the conclusion that the Sinclair holding should be reconsidered . . . . Today I join the Court in concluding 'that Sinclair was erroneously decided and that subsequent events have undermined its continuing validity.”

7.11.2005 12:09pm

Marc J. (mail):

SupremacyClaus:

How is Scalia's position in Ring either "pro-government" or "pro-lawyer rent seeking"?

Just wondering.

Also, although I appreciate the prose style, I have no idea what your "criminal cult enterprise" formulation refers to, other than decisions that you happen not to like.

7.11.2005 12:10pm

Gordo (mail):

I believe that the 162-year old Justice Story, then serving in his 124th year on the court, voted with the Brandeis majority in Erie v. Tompkins to overturn his 96-year old Swift v. Tyson decsion.

Or perhsps I am mistaken ...

7.11.2005 4:52pm

Marc: Briefly, the choice was between adherence to Scalia 6th Amendment fanhood vs another Scalia value, opposition to micromanaging interference with state court decision making in the death penalty, to getting on with it. I don't follow Scalia vacations. I don't know if he has Euro mentors. It only took 2 years for him to correct Apprendi. Amazingly fast even for this bright Justice.

All this is lawyer reviewed here. This is not me saying so, but a law prof.

This is me. Which decision increases time billing by 3 lawyers involved in the trial? This predicts siding with the 6th Amendment by a big fan of capital punishment. No contest. Went out of his way to support the majority, instead of just voting, saying nothing. This looks inconsistent and wacky without the rent seeking theory.

Blackstone, his inspiration, says, it is better that a 1000 guilty men go free than an innocent man hang. Those guilty men have paid a lawyer a fee. The lawyer, Blackstone, is their advocate. I bet he lived in a low crime area. The criminals will each commit 100's of crimes a year, devastating victims who have not paid the lawyer a fee. Scalia, an opponent of foreign legal doctrine, cites not just a foreigner, but an oppressor of our besieged nation. He voted for the Stamp Act. He tried freedom loving patriots in absentia. Why not cite the Ayatollah Khomeini? The latter did less actual damage to our nation than Blackstone. Citations of Blackstone are offensive to any patriot. Only cult indoctrination explains the tone deafness of this intelligent man.

As to the criminal cult enterprise. The crime is conflict of interest, a middle class word for theft. The cult is your law school experience, and all other induction events in the lawyer career, like a bad, pointless fraternity hazing. Then, even as a Justice of the Supreme Court, try to deviate from cult orthodoxy, feel its majestic force, no matter how rich, slick, powerful you are. Expect to get crushed, and personal destruction. See real world Professional Responsibility actions, not the rules which look good to the public. The lawyer is as oppressed as the rest of us. "Enterprise" is huge, taking in $100's bil and exceeding the take of organized crime. Big. They have a masking ideology, justice and policy, which is just con.

All a fun party. Problem. 1) their substantive doctrines come from religion, and violate the Constitution. 2) their pro-criminal, soft on the enemy ideology, for the purpose of rent seeking, will allow nuclear weapons to be detonated on our land, ending 1776, if not our lives. The idiots are going to get us killed.

7.11.2005 9:31pm

Paco (mail) (www):

In one of the few instances of a Justice publically acknowledging a change in viewpoint (and in an example of a move to the Right): Justice Powell authored Lloyd Corp. v. Tanner; in so doing he tried to maintain Food Employees v. Logan Valley Plaza. Later, when Hudgens overruled Logan Valley, he wrote "Upon more mature thought, I have concluded that we would have been wiser in Lloyd Corp. to have confronted this disharmony rather than draw distinctions based upon rather attenuated factual differences."

I also believe that Justice Stewart, the author of Hudgens, switched his vote from Tanner and Logan Valley. Thankfully. In my mind, that line of cases was absolutley the most threatening of the Warren Court precedent -- overruling them (? see Brentwood) is one of the greatest accomplishments of the Burger/Rehnquist courts.

7.11.2005 10:02pm

SC--

How did Scalia "correct" Apprendi in Ring? I think that any reasonable reading of the two would show--as your linked article states--that the latter simply extended the former into the death penalty context. And whether you follow Ring/Apprendi or Walton, the lawyers still have to try the issues--the question is whether they're tried to a judge or to a jury. So sorry, you've misread both Ring/Apprendi/Walton and Lazarus (not that I necessarily care about the latter--I've read &researched the cases, and don't see the need to genuflect before an official professorial analysis).

7.12.2005 4:11pm

Marc: A fact settles this, and we do not have the fact.

Scalia was torn between 2 valued principles. He made a choice. Did time of trial go up, down, or stay the same after Ring? If you are in the business, look at start and end dates, average the 2 set of numbers of days, before and after Ring, and you have the key fact. I am instantaneously swayed by facts, and am not stubborn.

The "same" or "less" time would strike a heavy blow against my theory, claiming there is no substantive difference between right and left, just rent seeking all around. Think of Northern Baptists getting all agitated arguing with Southern Baptists. To us non-Baptists, we don't get the narrow, insider reasons, being unable to tell them apart.

Not genuflecting, linking to a source more credible, less oddball than me. Solely for your welfare and entertainment.

Are there any Ring remands? A remand trumps. Huge billings on behalf of entire classes, at the irresistible order the SC, potentially enforced by Army Airborne.

7.12.2005 11:37pm

Roger Janeway (mail):

Here is an example from Justice Rehnquist. It cites Justice Jackson's opinion in McGrath (referred to by Leslie Katz in her 7/9/05 comment)

Califano v. Bowles, 443 U.S. 282, 294 n.12 (1979) (Rehnquist, J.) (discussing Social Security Act):

FN12. There is obviously a significant difference between this interpretation of the statutory purpose and that subscribed to by the author of this opinion in his separate concurrence in Weinberger v. Wiesenfeld, 420 U.S., at 655. To the extent that these interpretations conflict, the author feels he can do no better than quote Mr. Justice Jackson, concurring in McGrath v. Kristensen, 340 U.S. 162, 177-178 (1950):

"Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. Maryland, 12 Wheat. 419. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' Andrews v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court . . . .' United States v. Gooding, 12 Wheat. 460, 478 . . . . If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all."

A portion omitted in the above from Justice Jackson's words in McGrath is:

Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary--' Ignorance, sir, ignorance.' But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.'

7.13.2005 3:06pm