Repugnant Precedents and the Court of History

Abstract

The Supreme Court’s precedents continue to tolerate many practices that would shock modern sensibilities. Eugenic sterilization, race-based naturalization, forced labor on public roads, the conscription of child soldiers, and the exclusion of non-heterosexual immigrants all remain ostensibly valid policy options. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very societal shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot satisfactorily explain what ails culturally outmoded decisions. Even for Justices inclined to condemn these cases in less clinical terms, it is unclear what qualifies courts to make universalist claims about America’s deepest values. The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to American values. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting various tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever.