THE PARADOX OF PRECEDENT ABOUT PRECEDENT

When the Supreme Court overrules or declines to overrule a past

decision, it typically invokes precedent about precedent.1 These are
prior cases that establish a framework for when stare decisis counsels
for or against overruling a decision.2 “Perhaps the most famous”3 of
these is Planned Parenthood of Southeastern Pennsylvania v. Casey.4
Casey and its stare decisis factors have long been the dominant frame-
work endorsed by the Court in constitutional cases.5 And even in cases
in which the Court did not cite Casey, it employed a framework that
mirrored the one Casey developed.6 But Casey is not alone as a prece-
dent about stare decisis. Precedent about precedent exists to help judges
(and litigants) deal with a host of stare decisis questions.7 This Note
deals with precedent about precedent as a conceptual whole, but Casey
and Dobbs v. Jackson Women’s Health Organization8 make for ideal ex-
amples of the phenomenon on which this Note focuses.
Without a doubt, Dobbs overruled aspects of Casey’s framework
even as it employed some of the factors that Casey laid out.9 Dobbs’s
treatment of Casey as precedent about precedent has drawn significant

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015) (citing Patterson v. McLean
Credit Union, 491 U.S. 164, 172–73 (1989)); Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020) (quot-
ing Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019)); Dobbs v. Jackson Women’s Health
Org., 142 S. Ct. 2228, 2264 (2022) (citing Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2478–79
(2018); Ramos, 140 S. Ct. at 1414–16 (Kavanaugh, J., concurring in part)).
2 See, e.g., Franchise Tax Bd., 139 S. Ct. at 1499 (“The Court’s precedents identify a number of
factors to consider[:] . . . the quality of the decision’s reasoning; its consistency with related deci-
sions; legal developments since the decision; and reliance on the decision.” (citing Janus, 138 S. Ct.
at 2478–79; United States v. Gaudin, 515 U.S. 506, 521 (1995))).
3 BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 360 (2016).
4 505 U.S. 833 (1992).
5 See Nina Varsava, Precedent, Reliance, and Dobbs, 136 HARV. L. REV. 1845, 1878–80 (2023).
But see Dobbs, 142 S. Ct. at 2266 (describing the Casey framework as an “exceptional version of
stare decisis that . . . this Court had never before applied and has never invoked since”).
6 See, e.g., Janus, 138 S. Ct. at 2478–79; Franchise Tax Bd., 139 S. Ct. at 1499 (citing Janus, 138
S. Ct. at 2478–79); Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019) (quoting Janus, 138 S.
Ct. at 2478–79); Ramos, 140 S. Ct. at 1405 (quoting Franchise Tax Bd., 139 S. Ct. at 1499); see also
id. at 1414–16 (Kavanaugh, J., concurring in part).
7 See, e.g., Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S.
153, 169 n.15 (1976) (plurality opinion)) (stare decisis for fractured opinions); Patterson v. McLean
Credit Union, 491 U.S. 164, 172–73 (1989) (citing Square D Co. v. Niagara Frontier Tariff Bureau,
Inc., 476 U.S. 409, 424 (1986); Ill. Brick Co. v. Illinois, 431 U.S. 720, 736 (1977)) (stare decisis in the
statutory context).
8 142 S. Ct. 2228 (2022).
9 See id. at 2276–77 (quoting Casey, 505 U.S. at 856); see also Varsava, supra note 5, at 1881
(characterizing Dobbs as a “stark rejection of Casey’s stare decisis approach”); Melissa Murray &
Katherine Shaw, Dobbs and Democracy, 137 HARV. L. REV. 728, 732 (2024) (claiming Dobbs “fun-
damentally altered the scope and substance of the stare decisis calculus”).

797
798 HARVARD LAW REVIEW [Vol. 138:797

criticism, including in the pages of this law review.10 These critics argue
that the Court’s stare decisis analysis in Dobbs was misguided because
it departed from Casey’s conception of stare decisis either in theory or
in application.11 But if Casey’s conception of stare decisis was incorrect
from the start, then the Dobbs majority would have erred by employing
that same conception of stare decisis. The fact that Dobbs refused to
invoke Casey’s understanding of how stare decisis worked is not solely
a function of the Court’s rightward shift — it is a function of precedent
about precedent.
This Note argues that precedent about precedent is unique within
the system of stare decisis because precedent about precedent is not en-
titled to the stare decisis weight to which it, as precedent about prece-
dent, would entitle all other cases. Part I further sketches out the notion
of precedent about precedent and employs Dobbs and Casey as examples
of precedent about precedent in practice. Part II then argues that prec-
edent about precedent’s unique status poses a paradox. Finally, Part III
explores some of the problems that develop within any theory of prece-
dent about precedent because of the implications that flow from its par-
adoxical nature.

I. PRECEDENT ABOUT PRECEDENT

This Part defines precedent about precedent — what it is, and what
it isn’t. It then uses Dobbs and Casey to explore the idea of overruling
precedent about precedent.
A. The Concept of Precedent About Precedent
“Precedent about precedent” or “precedent on precedent” is a “prior
opinion[] identifying whether and how [a court] will regard its past prec-
edents.”12 In other words, precedent about precedent is what establishes
the framework through which a court evaluates horizontal precedent.
Precedent about precedent tells future courts what factors to consider

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
10 Varsava, supra note 5, at 1847–48; Murray & Shaw, supra note 9, at 732; see also David Litt,
A Court Without Precedent, THE ATLANTIC (July 24, 2022), https://www.theatlantic.com/ideas/
archive/2022/07/supreme-court-stare-decisis-roe-v-wade/670576 [https://perma.cc/HP9Y-2HMX];
Becky Sullivan, What Conservative Justices Said — And Didn’t Say — About Roe at Their Con-
firmations, NPR (June 24, 2022, 3:44 PM), https://www.npr.org/2022/05/03/1096108319/roe-v-wade-
alito-conservative-justices-confirmation-hearings [https://perma.cc/XV4P-WW8U] (noting that
Democratic leaders said: “Several of these conservative Justices . . . have lied to the U.S. Senate.”).
11 See, e.g., Varsava, supra note 5, at 1847–48, 1911–12; Murray & Shaw, supra note 9, at 753;
Litt, supra note 10.
12 Melissa Murray, The Supreme Court, 2019 Term — Comment: The Symbiosis of Abortion and
Precedent, 134 HARV. L. REV. 308, 328 (2020). This Note focuses for simplicity on precedent about
precedent at the Supreme Court, but precedent about precedent exists beyond the federal Supreme
Court. See Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 NEV. L.J.
787, 794–800 (2012). The implications of this Note are the same for all courts, state and federal,
that have some sort of horizontal stare decisis doctrine.
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 799

and how to weigh them as part of their stare decisis analysis.13 So,
questions such as, “What counts as a reliance interest?”14 or even,
“Should the Court consider reliance interests?”15 are all questions for
which precedent about precedent provides an answer. Additionally,
precedent about precedent needs to be one of two things: (1) an explicit
holding about how to treat other precedents; or (2) otherwise control-
ling,16 either because some other precedent makes it so17 or because the
Court treats it as such.18 Therefore, the individual views of Justices do
not create precedent about precedent for the Court, but they can affect
how precedent about precedent applies in practice.19 This idea of prec-
edent about precedent is not foreign to the Court or scholarship sur-
rounding stare decisis. For example, then-Judge Kavanaugh invoked
the concept when discussing Casey at his confirmation hearing,20 and
literature evaluating the Roberts Court’s approach to stare decisis relies
on the concept of precedent about precedent.21
There are concepts to which this Note does not use the term “prece-
dent about precedent” to refer. Importantly, precedent about precedent
as this Note uses it does not implicate vertical precedent. To be sure,

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
13 Cf. Ramos v. Louisiana, 140 S. Ct. 1390, 1440 (2020) (Alito, J., dissenting) (describing Ramos
as “an important precedent about stare decisis” that he “assume[d] . . . w[ould] apply . . . in future
cases”); Confirmation Hearing on the Nomination of Hon. Brett M. Kavanaugh to be an Associate
Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary,
115th Cong. 127–29, 157, 342 (2018) [hereinafter Confirmation Hearing] (statement of Judge Brett
Kavanaugh) (describing Casey as “precedent on precedent” because of how it applied the stare de-
cisis factors).
14 See Varsava, supra note 5, at 1847 (discussing Dobbs’s different conception of reliance inter-
ests from Casey).
15 See Gamble v. United States, 139 S. Ct. 1960, 1986 (2019) (Thomas, J., concurring) (arguing
that “demonstrably erroneous precedent[s]” should be overruled regardless of reliance interests).
16 To be sure, some scholars have attempted to reconceptualize precedent as not binding, see,
e.g., Richard M. Re, Precedent as Permission, 99 TEX. L. REV. 907, 908–12 (2021), but the Court
and most scholars view stare decisis as constraining to some degree, see, e.g., Richard H. Fallon, Jr.,
Essay, Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L.
REV. 570, 570 (2001); Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 TEX.
L. REV. 1711, 1714 (2013). This Note uses the term “binding” to describe the notion that the Court
at least treats prior cases as constraining. Of course, as a practical matter the Supreme Court is
never truly bound by anything more than its own willingness to treat itself as constrained by prior
cases because it is not subject to appellate review. In other words, if the Court tomorrow decided
to discard all of its precedents, nothing really stops it from doing so other than a sense of constraint
from its own norms about stare decisis. Thus, when one speaks of the Court being “bound,” one is
really speaking about varying degrees of constraint, all of which can be overcome.
17 See Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153,
169 n.15 (1976) (plurality opinion)).
18 See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2264–66, 2275–76 (2022) (re-
peatedly citing Justice Kavanaugh’s partial concurrence in Ramos as authority on the stare decisis
framework).
19 See infra p. 815.
20 Confirmation Hearing, supra note 13, at 127–29, 157, 342 (statement of Judge Brett
Kavanaugh).
21 See, e.g., Nina Varsava, Essay, Precedent on Precedent, 169 U. PA. L. REV. ONLINE 118, 133
(2020) (analyzing Ramos as precedent on precedent).
800 HARVARD LAW REVIEW [Vol. 138:797

there is precedent about vertical precedent — namely, that it binds

lower courts.22 But as a general matter, each court that employs some
form of horizontal precedent can choose its stare decisis framework for
itself.23 Whether the Supreme Court could employ its supervisory
power to impose a binding, vertical precedent about horizontal prece-
dent is another question.24 For now, it is enough to acknowledge the
Court has never attempted to do so.25 The precedent about precedent
this Note is concerned with, therefore, is the horizontal precedent that
describes how a court should evaluate its own precedents.
Finally, it is important to mention that precedent about precedent
can change over time. This Note is premised on the idea that the Court
can and does overrule or change aspects of its precedent about prece-
dent.26 That matters because it means sometimes the Court needs to
employ some sort of framework to decide when to modify its precedent
about precedent. And when that modification happens, one central
question is: From where does the framework for reevaluating a prece-
dent about precedent come? In other words, does the Court use the
existing framework that it is supposed to be reconsidering, or does it
employ what it believes to be a new, better framework?27 Answering
these questions is key to understanding precedent about precedent more
deeply.
B. Casey and Dobbs: A Case Study
Casey and Dobbs provide excellent examples of precedent about
precedent in practice and the overruling of precedent about precedent.
As a result, they can help one understand the theory behind precedent
about precedent and how the Court evaluates precedent about prece-
dent in practice. Of course, both Casey and Dobbs were and remain
polarizing decisions,28 but it is in the abortion context that the contours
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
22 GARNER ET AL., supra note 3, at 27.
23 See id. at 492–94.
24 Cf. Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 COLUM. L. REV.
324, 332–33 (2006) (attempting to delineate the scope of the Supreme Court’s supervisory power).
Whether a rule of horizontal precedent is even a procedural rule is another question, but some
courts of appeals have adopted their current stare decisis frameworks through Circuit Rules or
Internal Operating Procedures. Mead, supra note 12, at 799; see also Michael S. Kanne, The “Non-
Banc En Banc”: Seventh Circuit Rule 40(e) and the Law of the Circuit, 32 S. ILL. U. L.J. 611, 611–
13, 617 (2008) (outlining the Seventh Circuit’s unique horizontal precedent procedure and drawing
comparisons to informal mechanisms in the Second and D.C. Circuits).
25 See Barrett, supra note 24, at 328–32 (cataloging the Court’s use of its supervisory power).
26 See, e.g., Richard M. Re, Beyond the Marks Rule, 132 HARV. L. REV. 1942, 1948 & n.28
(2019) (suggesting the Marks rule was an innovation).
27 To be clear, the Court can have multiple frameworks depending on the situation. The ques-
tion is whether the Court will apply a particular framework to the framework itself.
28 Compare, e.g., Alyson M. Cox & O. Carter Snead, “Grievously and Egregiously Wrong”: Amer-
ican Abortion Jurisprudence, 26 TEX. REV. L. & POL. 1, 22–23 (2021), with J. Shoshanna Ehrlich,
Why the Dobbs Court Got It Wrong: Connecting the Dots Between Opposition to Abortion and
Gender Animus, 22 SEATTLE J. FOR SOC. JUST. 461, 511–14 (2024).
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 801

of precedent about precedent become the sharpest.29 So, putting aside

the merits of those decisions for a moment, it is possible to explore how
precedent about precedent functions in practice.
Start with what made Casey the Court’s central “paean to stare de-
cisis” for so many years.30 Casey not only synthesized the prior factors
the Court had employed into one, (relatively) clear stare decisis frame-
work,31 but also painstakingly detailed how to apply those factors.32 In
doing so, Casey became an authority moving forward for how the Court
would think about stare decisis.33 Whether or not Casey’s framework
was actually binding on future decisions is another question,34 but
what matters is that, for a time, when the Court was faced with over-
ruling a prior case, it would dutifully wheel out Casey’s framework and,
at a minimum, purport to apply it.35 Thus, Casey was “precedent on
precedent.”36
Enter Dobbs. The Dobbs majority rejected Casey’s framework in
two meaningful respects. First, it overruled Casey’s approach to reli-
ance interests by rejecting Casey’s intangible reliance interests analy-
sis.37 Second, the majority discarded the weight Casey gave to the
impact of overruling Roe on the Court’s legitimacy by focusing on Roe’s

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
29 See Murray, supra note 12, at 310.
30 Lawrence v. Texas, 539 U.S. 558, 587 (2003) (Scalia, J., dissenting); see also Varsava, supra
note 5, at 1878–80 (detailing the rise and fall of the Court’s invocations of Casey as authority on
stare decisis).
31 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854–55 (1992) (citing Swift & Co.
v. Wickham, 382 U.S. 111, 116 (1965); United States v. Title Ins. & Tr. Co., 265 U.S. 472, 486 (1924);
Patterson v. McLean Credit Union, 491 U.S. 164, 173–74 (1989); Burnet v. Coronado Oil & Gas Co.,
285 U.S. 393, 412 (1932) (Brandeis, J., dissenting)) (explaining that courts should consider worka-
bility, reliance interests, and legal and factual developments).
32 See id. at 855–69.
33 See Varsava, supra note 5, at 1878–80.
34 See Re, supra note 16, at 919–22.
35 For a collection of cases, see Murray, supra note 12, at 329–30. To be sure, the Court would
sometimes apply a Casey-esque framework without citing Casey, Varsava, supra note 5, at 1878,
1880, but that shift is correlated with “some [J]ustices view[ing] the decision as tainted and illegiti-
mate” on the merits, Adam Liptak, The Threat to Roe v. Wade in the Case of the Missing Precedent,
N.Y. TIMES: SIDEBAR (Sept. 17, 2018), https://www.nytimes.com/2018/09/17/us/politics/kavanaugh-
abortion-precedent.html [https://perma.cc/V2X3-ACSP] (quoting Professor Justin Driver), not a re-
jection of Casey’s factors.
36 Confirmation Hearing, supra note 13, at 128 (statement of Judge Brett Kavanaugh). Some
scholars have argued that Casey was actually an outlier when it comes to precedent about precedent,
see, e.g., Akhil Reed Amar, On Text and Precedent, 31 HARV. J.L. & PUB. POL’Y 961, 962 (2008),
and both pre- and post-Casey decisions demonstrate that Dobbs was actually just returning to the
status quo. If that’s true, then the critique of Dobbs looks even weaker, so this Note will assume
that Casey was a valid precedent about precedent. See sources cited supra notes 30–35.
37 See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2276–77 (2022) (quoting, inter
alia, Casey, 505 U.S. at 856; id. at 957 (Rehnquist, C.J., concurring in the judgment in part and
dissenting in part)); see also Varsava, supra note 5, at 1873–74. To be specific, Dobbs gave no weight
to the fact that women may have ordered their lives around the assumption that Roe was good law.
Dobbs, 142 S. Ct. at 2276 (quoting Casey, 505 U.S. at 957 (Rehnquist, C.J., concurring in the judg-
ment in part and dissenting in part)).
802 HARVARD LAW REVIEW [Vol. 138:797

and Casey’s political divisiveness.38 In doing so, however, the Court did
not use Casey’s analysis to determine whether Casey’s analysis should
be overruled. If the Court had done so, Casey would have survived
because overruling Casey’s understanding of intangible reliance inter-
ests would have, for example, itself undermined intangible reliance in-
terests.39 Instead, Dobbs employed what it viewed as the proper stare
decisis framework and evaluated Casey in light of that conception of
stare decisis.40 In overruling Casey as a precedent about precedent,
Dobbs did not treat Casey’s precedent about precedent as controlling.
In sum, precedent about precedent tells future Courts how to evalu-
ate precedent — the weight to give to reliance interests, how wrong the
prior decision needs to be to overrule it, and so forth. But sometimes
the Court overrules a prior precedent about precedent, as it did in
Dobbs. In deciding whether to overrule the Casey framework, the Court
did not employ the Casey framework. That decision is the central focus
of this Note, which now turns to the paradox that necessitates that
decision.

II. THE PARADOX

As the discussion of Dobbs and Casey suggests, precedent about prec-
edent faces a unique wrinkle when it comes to stare decisis. This Part
offers a theoretical explanation for this unique status by suggesting that
precedent about precedent is paradoxical in nature. It then explores this
paradox in practice by returning to Dobbs and some of the criticisms of
Dobbs’s treatment of Casey as a precedent about precedent.
A. Theory
The paradox of precedent about precedent is this: When the Court
overrules a precedent about precedent, it cannot employ that precedent
about precedent to evaluate the original precedent itself. As a result,
precedent about precedent entitles all other cases to a certain amount of
stare decisis weight before they are overruled, but the same stare decisis
weight does not attach to the precedent about precedent when it faces
its own repudiation. Unlike all other cases, precedent about precedent
does not operate under the very rules the precedent establishes.
A real-world example at the extreme demonstrates the underlying
theory of why a precedent about precedent cannot be evaluated on its

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
38 See Dobbs, 142 S. Ct. at 2278–79 (quoting Casey, 505 U.S. at 865, 867); see also Murray &
Shaw, supra note 9, at 732. Again, to be specific, Dobbs rejected Casey’s concern that the Court
would be seen as succumbing to political pressure if it overruled Roe. Dobbs, 142 S. Ct. at 2278
(quoting Casey, 505 U.S. at 865, 866–67) (citing Casey, 505 U.S. at 869).
39 Cf. Varsava, supra note 5, at 1882, 1894 (arguing that “reliance interests may take an abstract
form and may accrue at the societal level,” id. at 1882).
40 See Dobbs, 142 S. Ct. at 2276–79; see also id. at 2347–48 (Breyer, Sotomayor & Kagan, JJ.,
dissenting) (criticizing the majority for not following Casey’s stare decisis considerations).
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 803

own terms. For a roughly sixty-eight year stretch, the House of Lords
in the United Kingdom considered stare decisis absolute41 until it over-
ruled that practice.42 In other words, the House of Lords’ precedent
about precedent did not permit it to ever overrule a precedent,43 but it
nevertheless did so without feeling constrained by that precedent about
precedent.44 If the Supreme Court were to adopt that approach and
then later decide that such an approach was misguided, surely it could
overrule its absolutist position, just as the House of Lords did, even
though the absolutist approach to stare decisis would suggest that it
could never itself be overruled. An alternative view would mean that
the House of Lords acted illegitimately when it overruled its own abso-
lutist meta-precedent, but there are a couple of problems with that view.
First, such a position would raise serious questions about the ability of
one majority to truly bind a future majority to a particular framework.45
A judge-made rule that could not be amended is like a statute that pur-
ports to be unamendable by Congress. So long as the source of the law
is the same, there is no reason why a subsequent rule cannot replace a
prior one.46 Second, such a position would present opportunities for
gamesmanship.47 Therefore, the experience of the House of Lords
demonstrates why it would be theoretically untenable to suggest that a
precedent about precedent applies to itself.
A simplified, numerical example helps illustrate this point for nonab-
solute rules of meta-precedent. Imagine that the Court’s existing frame-
work for stare decisis established in Case A required the majority to be
at least 90% certain that a prior case was wrongly decided before

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
41 See John A. Fairlie, The Doctrine of Stare Decisis in British Courts of Last Resort, 35 MICH.
L. REV. 946, 953–54 (1937) (quoting London St. Tramways Co. v. London Cnty. Council [1898] AC
375 (HL) 379 (appeal taken from Eng.)).
42 Julius Stone, 1966 and All That! Loosing the Chains of Precedent, 69 COLUM. L. REV. 1162,
1162 (1969). The House of Lords example is complicated by the mixing of judicial, ministerial, and
legislative functions that occurred in the House of Lords, see id. at 1162–63, but for purposes of the
underlying theoretical point, it is enough to treat the House of Lords here as the United Kingdom’s
highest court overruling a prior precedent about precedent.
43 London St. Tramways [1898] AC at 379.
44 See Practice Statement [1966] 1 WLR 1234 (HL) 1234.
45 Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment)
(arguing that stare decisis does not permit one majority to bind future majorities to a particular
methodological framework in statutory interpretation); Randy J. Kozel, Statutory Interpretation,
Administrative Deference, and the Law of Stare Decisis, 97 TEX. L. REV. 1125, 1158 (2019) (same);
Evan J. Criddle & Glen Staszewski, Essay, Against Methodological Stare Decisis, 102 GEO. L.J.
1573, 1595–96 (2014) (same).
46 Thus, a constitutional amendment requiring an absolutist rule of stare decisis would be legit-
imate because it is from a higher source of law.
47 Imagine if Casey had said as a precedent about precedent that Roe was forever off the table
for future overruling — or if Dobbs had said the same thing about itself. Cf. Dobbs v. Jackson
Women’s Health Org., 142 S Ct. 2228, 2278 (2022) (“The Court has no authority to decree that
an erroneous precedent is permanently exempt from evaluation under traditional stare decisis
principles.”).
804 HARVARD LAW REVIEW [Vol. 138:797

overruling that case.48 Now imagine that in Case B the Court has come
to believe that its 90% bar was too high. Instead, the Court would like
to use Case B as a vehicle to establish a new stare decisis framework.
Under Case B’s proposed rule, the Court could overrule a case when it
is 75% certain the prior case was wrongly decided. Obviously, doing so
would require overruling Case A as precedent about precedent. But
here’s the catch: Can the Court overrule Case A if it is only 80% sure
Case A was wrongly decided? The answer should be “yes” for the same
reason that the House of Lords could overrule its absolutist stare decisis
position. If the House of Lords could overrule an absolutist rule without
employing the absolutist rule, then Case B can overrule Case A without
employing Case A’s rule. Therefore, the old Case A’s 90% framework
will be subjected to Case B’s new 75% framework instead of Case A’s
own framework. If Case B were merely overruling a run-of-the-mill
merits decision in Case C, Case B would be bound by the normal rules
of stare decisis to apply Case A’s 90% framework. But because Case B
is overruling a precedent about precedent, Case A does not receive the
same stare decisis consideration that Case C would. That makes Case
A, as a precedent about precedent, unique among other cases when it
comes to stare decisis.
Therein lies the heart of the paradox. A precedent about precedent
is not entitled to the same stare decisis weight as all other precedent
despite establishing how much stare decisis weight other precedents are
to be given. Requiring the Court to employ the stare decisis framework
that it views as incorrect to evaluate whether stare decisis compels it to
retain that very framework would be both illogical and impractical. It
would mean that one Court could set the rules of precedent about prec-
edent for all time, a position that eschews traditional approaches to stare
decisis. It would also mean that a Court could create special rules for
favored cases, undermining the evenhanded application of stare decisis.
Therefore, when asking whether Case B must use Case A’s stare decisis
framework to overrule Case A’s framework, the answer is “no.” It is this
inability to operate within the very framework that it establishes and
that all other cases operate within that makes precedent about precedent
unique.
B. Practice
In practice, this means that when the Court overrules aspects of its
precedent about precedent, such as Casey, it cannot and will not use
that precedent about precedent’s framework. The theory behind the
paradox of precedent about precedent means that a precedent about
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
48 The “certainty percentage” is an easy example because it allows for the use of discrete num-
bers, but obviously Justices do not use this framework in practice. Substitute the certainty percent-
age for tangible reliance interests, workability, or any other potential stare decisis factor, and the
results are the same.
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 805

precedent should not be used to evaluate itself. This plays out in nu-
merous cases involving revisions to precedent about precedent. Dobbs
is a prime example,49 but there are others. Casey itself, in synthesizing
a new stare decisis framework, did not purport to apply any particular
prior framework.50 The Ramos v. Louisiana51 plurality, in attempting
to overrule part of the Marks v. United States52 rule, did not first apply
Marks; instead, it claimed Marks did not cover situations like the one in
Ramos.53
Therefore, in some respects, the critics of the Dobbs majority have a
point. Dobbs discarded or modified aspects of Casey’s stare decisis anal-
ysis without analyzing the Casey framework through any sort of stare
decisis lens.54 But it is important to differentiate two different lines of
criticism surrounding Dobbs’s treatment of Casey. First, there is a “mer-
its” claim. This is simply the claim that as a matter of stare decisis — re-
gardless of the framework — Casey should not have been overruled.55
Fair enough. It is the second line of criticism that matters for this Note’s
purposes. This is the “meta-precedent” claim, meaning that it involves
precedent about precedent. This criticism argues that Dobbs should
have upheld Casey based on Casey’s own stare decisis framework.56
The paradox of precedent about precedent demonstrates that this
claim cannot be true. For one, it would create a theoretical mess. For
another, practice surrounding precedent about precedent confirms that
when Justices overrule (or attempt to modify) aspects of precedent about
precedent, they do not apply the original precedent about precedent.57
In fairness, the lines often blur between the merits and meta-precedent

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
49 See Dobbs, 142 S. Ct. at 2276–77.
50 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864–69 (1992) (including only a
single “cf.” citation to Brown v. Board of Education (Brown II), 349 U.S. 294 (1955), for Casey’s
new judicial legitimacy analysis).
51 140 S. Ct. 1390 (2020).
52 430 U.S. 188 (1977). The Marks rule instructs that “[w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments on
the narrowest grounds . . . .’” Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)
(plurality opinion)).
53 Ramos, 140 S. Ct. at 1403 (opinion of Gorsuch, J.). Ramos is a particularly complex example
because although the plurality claimed that Marks did not apply to Justice Powell’s opinion in
Apodaca v. Oregon, 406 U.S. 404 (1972), the exact contours of the Marks rule are not clear from
Marks itself, see Re, supra note 26, at 1976–93 (suggesting four different ways to read Marks), and
what is even more unclear is the precedential status under Marks of a plurality opinion that poten-
tially modifies Marks, see infra pp. 811–12. Importantly, however, six Justices believed the Ramos
plurality was attempting to overrule an aspect of Marks. See infra note 96 and accompanying text.
54 See Dobbs, 142 S. Ct. at 2276–77, 2278–79.
55 See, e.g., Litt, supra note 10.
56 See Varsava, supra note 5, at 1847–48 (arguing Dobbs’s new stare decisis framework does not
give sufficient weight to the reliance interests at stake in Casey); cf. Melissa Murray, Essay, Stare
Decisis and Remedy, 73 DUKE L.J. 1501, 1526 (2024) (noting that Dobbs invoked other factors
outside the normal stare decisis framework for overruling Casey).
57 See supra notes 49–53 and accompanying text.
806 HARVARD LAW REVIEW [Vol. 138:797

arguments.58 When someone thinks that the original precedent about

precedent was correct, he or she is likely to believe that a new stare
decisis framework should not be applied because the old framework was
correct on the merits.59 Again, nothing about the paradox of precedent
about precedent suggests that the merits claim is illegitimate. When
that claim becomes blurred with a meta-precedent claim, however, the
criticism’s footing becomes shakier. In other words, arguments that
Dobbs should not have overruled Casey based on Dobbs’s own concep-
tion of stare decisis60 are fair game. So too are arguments that Dobbs
misconceived vital aspects of stare decisis.61 What the nature of prece-
dent about precedent prevents is arguments that Dobbs erred by not
applying Casey’s formulation of stare decisis.
In short then, precedent about precedent’s unique paradoxical na-
ture prevents it from applying to itself. What exists in theory plays itself
out in practice, as Dobbs (and Ramos) demonstrate. But this paradox is
only the beginning. The strange nature of precedent about precedent
gives rise to other theoretical problems — problems that the Court has
not reasoned through.

III. THE PROBLEMS

This paradox that precedent about precedent creates presents a host
of problems. This Part examines those problems and offers a prelimi-
nary account of how judges and scholars ought to think about them. It
also shines light on an area of law the Court too often neglects to theorize
adequately.
A. The Problem of Overruling Precedent About Precedent
The first problem that this theory of precedent about precedent pre-
sents is what to do about overruling precedent about precedent. Previ-
ously, this Note has focused on the theory behind overruling a precedent
about precedent in order to lower the bar for overruling cases. But the
problem of overruling precedent about precedent exists in both direc-
tions — making it easier to overrule precedent and making it harder.
1. Lowering the Bar for Overruling. — The first problem with over-
ruling precedent about precedent occurs whenever the Court makes it
easier to overrule precedent — in other words, when the Court lowers
the bar for overruling prior cases by modifying the prior precedent about
precedent. For most cases, this is relatively straightforward. When the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
58 See Varsava, supra note 5, at 1856–57; Murray & Shaw, supra note 9, at 732.
59 Cf. Dobbs, 142 S. Ct. at 2319–20 (Breyer, Sotomayor & Kagan, JJ., dissenting) (criticizing the
majority for disregarding both Casey as precedent about precedent and Casey’s application of stare
decisis).
60 See Varsava, supra note 5, at 1866–72.
61 See Murray & Shaw, supra note 9, at 763–66 (arguing the Dobbs majority seriously misunder-
stood democracy even as it invoked democracy as a factor counseling overruling Roe).
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 807

Court weakens or overrules a real-world stare decisis factor, it employs

the new calculus to overrule the prior precedent about precedent.62 This
is the key insight of recognizing that precedent about precedent presents
a paradox.
Dobbs is once again a prime example of this. In rejecting Casey’s
judicial-legitimacy justification for retaining Roe,63 the Court focused
on Roe’s and Casey’s disruption of democratic deliberation around the
abortion question.64 It did not employ Casey’s conception of stare deci-
sis. Many of the factors it invoked were the same,65 but Dobbs used its
own stare decisis calculus to decide whether Casey’s stare decisis anal-
ysis was correct.66 To the extent that one thinks this approach to stare
decisis in the precedent about precedent context is problematic, it is
largely inescapable. An alternative solution is simply not feasible for
logical and practical reasons.67
There is a larger problem looming, however. So far, this Note has
assumed that Case A (requiring 90% certainty) meets Case B’s criteria
for overruling (requiring 75%). But what happens if Case A comes up
short? This would occur if the Court was only 70% certain that Case A
was wrong. Is Case A as a precedent about precedent entitled to any
stare decisis respect? In these instances, precedent about precedent pre-
sents the problem that this Note has only so far hinted at — can one
Court bind a future Court methodologically?68
In practice, the Court seems not to bother with stare decisis when it
modifies precedent about precedent. For example, rather than deter-
mine whether Casey’s conception of reliance was workable, had itself
engendered reliance interests, and so forth, the Dobbs Court made a
merits judgment that Casey was wrong about reliance, and then it over-
ruled Casey on that point.69 This suggests that stare decisis for prece-
dent about precedent is empty (or so extremely merits sensitive that it
overrides any other considerations).70 In other words, the Court makes
a merits decision about what the correct rule of precedent is, and then
it implements that rule regardless of whether the old precedent about

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
62 See, e.g., id. at 753–54 (explaining the Dobbs majority’s application of new democratic factors
when overruling Casey).
63 Dobbs, 142 S. Ct. at 2278–79.
64 Id. at 2265, 2279; see also Murray & Shaw, supra note 9, at 753–54 (noting this phenomenon).
65 Murray & Shaw, supra note 9, at 753.
66 See Dobbs, 142 S. Ct. at 2265–77 (listing the factors and applying them).
67 See supra notes 45–47 and accompanying text.
68 See sources cited supra note 45; see also supra note 16 (discussing how questions of “binding”
methodologies are really just questions of constraint).
69 See Dobbs, 142 S. Ct. at 2276–77.
70 See Re, supra note 16, at 938–40 (describing the merits-sensitive view of precedent). For an
alternative view arguing that, at least as a theoretical matter, merits-sensitive stare decisis is flawed,
see Randy J. Kozel, Precedent and Constitutional Structure, 112 NW. U. L. REV. 789, 824–25 (2018),
and Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 416–21
(2010).
808 HARVARD LAW REVIEW [Vol. 138:797

precedent meets the new criteria for overruling. So if the Court is only
70% sure Case A was wrong, it still overrules Case A and adopts a 75%
threshold in Case B. The Court does not in practice apply the new stare
decisis framework to the old one.
This is both a problem and a potential solution. On the one hand, it
undermines the idea of precedent about precedent as binding in practice.
And if precedent about precedent isn’t binding, why do judicial nomi-
nees profess fidelity to it,71 and what good is it? So that is a problem.
On the other hand, if precedent about precedent does not get any stare
decisis effect, then there is a way to explain the Court’s practice of
seemingly ignoring stare decisis when it comes to precedent about prec-
edent: The Court does not bother going through the stare decisis factors
when overruling precedent about precedent because it is a purely
merits-motivated decision.
A couple of implications flow from this position. First, the Court
and judicial nominees can still claim that they are bound by precedent
about precedent in almost all cases.72 Overruling precedent about prec-
edent is a special case where precedent about precedent does not apply.
This understanding of precedent about precedent comports with the the-
oretical point from earlier that precedent about precedent does not apply
to itself.73 It also allows one to retain the view that precedent about
precedent is constraining to some degree.74 It is just not constraining
when it comes to itself — hence, the paradox. Recognizing that over-
ruling precedent about precedent is a purely merits-based decision also
solves the problem of what to do when Case B wants to overrule Case
A as precedent about precedent, but Case A does not meet Case B’s
criteria for overruling. Because the decision to overrule Case A as prec-
edent about precedent is a pure merits question, it does not matter if
Case A satisfies Case B’s framework.75 Finally, from a positivist

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
71 E.g., Confirmation Hearing, supra note 13, at 128 (statement of Judge Brett Kavanaugh).
72 See, e.g., id.; Dobbs, 142 S. Ct. at 2261–62 (citing, inter alia, Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 856 (1992)); Kisor v. Wilkie, 139 S. Ct. 2400, 2422–23 (2019) (quoting Kimble
v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015); Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,
798 (2014); Payne v. Tennessee, 501 U.S. 808, 827 (1991); Halliburton Co. v. Erica P. John Fund,
Inc., 573 U.S. 258, 266 (2014)); Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2478–79 (2018)
(quoting, inter alia, Payne, 501 U.S. at 827; Pearson v. Callahan, 555 U.S. 223, 233 (2009)). But see
Dobbs, 142 S. Ct. at 2319 (Breyer, Sotomayor & Kagan, JJ., dissenting) (criticizing the Court for not
following its precedents about precedent); Kisor, 139 S. Ct. at 2445 (Gorsuch, J., concurring in the
judgment) (quoting Pearson, 555 U.S. at 233; Arizona v. Gant, 556 U.S. 332, 348 (2009); Janus, 138
S. Ct. at 2478–79) (same); Janus, 138 S. Ct. at 2497 (Kagan, J., dissenting) (quoting Kimble, 576 U.S.
at 455) (same).
73 See supra section II.A, pp. 802–04.
74 See supra note 16 and accompanying text. This is true even for members of the Court who
take a more flexible view of precedent. See, e.g., Loper Bright Enters. v. Raimondo, 144 S. Ct.
2244, 2279–81 (2024) (Gorsuch, J., concurring).
75 In this way, the baseline norm is that precedent about precedent is not entitled to any stare
decisis effect, but the situation discussed in section II.A, pp. 802–04, is a special case in which one
does not need to consider these problems because Case A meets Case B’s overruling criteria.
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 809

perspective, it seems to provide a descriptively correct account of the

law. If one accepts the view that the Court can create binding precedent
about precedent, understanding the paradox of precedent about prece-
dent in this way helps explain behaviors in some of the Court’s most
recent cases involving precedent about precedent.76
To be sure, viewing precedent about precedent as binding except
when its own framework is at issue is not the only possible solution to
this problem. Another solution is to reject the idea that one Court can
methodologically bind future Courts. This would do away with prece-
dent about precedent as a concept. On the one hand, this might be a
compelling solution because there are certainly some situations in which
it seems the Court cannot methodologically bind itself.77 However,
adopting this view runs into a couple of problems. First, it would not
explain why the Court talks about precedent about precedent in the way
it does. If precedent about precedent is not binding in cases where the
precedent itself is at issue, why does the Court repeatedly suggest that
precedent about precedent matters?78 Second, there are instances in
which the Court does adopt binding methodologies.79 Perhaps this is
incorrect,80 or precedent about precedent can be differentiated from
these situations,81 but at the very least, discarding the idea of precedent
about precedent is a drastic step.
A final, related solution would be to view precedent about precedent
as permissive but not mandatory in all cases. This would make prece-
dent about precedent a special case of the view that Professor Richard
Re has outlined.82 Following Re’s approach, the Court could invoke
precedent about precedent to “establish[] the lawfulness of a particular
course of action without requiring any additional inquiry,” but “[i]t
would remain fully open to the judge to deviate from the precedent,

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
76 See, e.g., Dobbs, 142 S. Ct. at 2276–79 (discarding aspects of Casey’s stare decisis analysis
without applying any stare decisis weight to them); Ramos v. Louisiana, 140 S. Ct. 1390, 1402–03
(2020) (opinion of Gorsuch, J.) (attempting to carve out an exception to the Marks rule without
applying any stare decisis weight to the rule).
77 See Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in
PRECEDENT IN THE UNITED STATES SUPREME COURT 135, 151–54 (Christopher J. Peters ed.,
2013) (arguing against stare decisis for constitutional interpretation methodology); see also Sydney
Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 GEO.
L.J. 1863, 1873–77 (2008); Kozel, supra note 45, at 1148.
78 See, e.g., cases cited supra note 1.
79 See, e.g., Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984),
overruled by Loper Bright, 144 S. Ct. 2244. In some respects, Loper Bright could be seen as a
precedent about precedent, see Loper Bright, 144 S. Ct. at 2292–93 (Gorsuch, J., concurring), but
the heart of Loper Bright’s stare decisis analysis mirrored the approach endorsed in Dobbs, see id.
at 2270 (majority opinion) (quoting Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019)).
80 See Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment);
Kozel, supra note 45, at 1158; Oldfather, supra note 77, at 151–54.
81 Cf. Barrett, supra note 16, at 1713 (explaining that stare decisis varies across different types
of decisions).
82 See generally Re, supra note 16, at 919–22.
810 HARVARD LAW REVIEW [Vol. 138:797

provided that doing so is otherwise lawful.”83 In other words, it is lawful

for the Court to retain precedent about precedent because it is precedent,
but it is also lawful for the Court to choose to ignore or revoke the per-
mission that precedent about precedent bestows.84 On the descriptive
side, the precedent about precedent permission model avoids reading too
much into the Court’s statements that precedent about precedent has
some binding force; while the Court may proclaim that precedent about
precedent is binding, “the Justices may help themselves to a rhetoric of
bindingness while engaging in a practice that is best described in terms
of permissions.”85 Thus, the permission model describes the Court’s
practices in a “do-as-I-do,” not in a “do-as-I-say,” manner, which is a less
drastic step than discarding the concept of precedent about precedent in
toto, but it still requires one to discount significantly the purported con-
straint of precedent about precedent.
Thus, whenever the Court makes it easier to overrule precedent
about precedent, there is a chance that a theoretical problem will present
itself. However, there are a couple of ways to reconceptualize precedent
about precedent in order to get around this problem, depending on one’s
view of whether one majority can methodologically bind a future ma-
jority. Each potential solution has its merits and drawbacks. The point
here is not to definitively defend one solution but to demonstrate that
the paradoxical nature of precedent about precedent requires more the-
orization about precedent and its constraining power — theorization at
which the Justices have only waved their hands.86
2. Raising the Bar for Overruling. — When the Court raises the bar
for overruling precedent, it triggers the second problem with overruling
precedent about precedent. This problem is more complex than the
problem that arises from lowering the bar for overruling precedent, but
it again serves the point of highlighting the paradoxical nature of prec-
edent about precedent. The issue imagined here is reversal of the prior
examples; instead of establishing a 75% threshold for overruling a case
(call that Case X), the Court wants to establish a 90% certainty require-
ment (call that Case Y). If the Court is 95% confident that Case X is
wrong as a precedent about precedent, then there is no problem at all
because the Court’s decision satisfies both Case X’s and Case Y’s re-
quirements. The difficulty arises when the Court is only 80% sure Case
X is wrong. In that instance, Case X should be overruled on its own
terms, but Case Y, which is supposed to be the new stare decisis frame-
work, suggests that overruling would be inappropriate.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
83 Id. at 920.
84 One can add increasing nuance to this position as necessary. See, e.g., id. at 942–46. This is
merely a barebones framework for thinking about precedent about precedent as permissive.
85 Id. at 937.
86 See, e.g., Gamble v. United States, 139 S. Ct. 1960, 1981–88 (2019) (Thomas, J., concurring);
Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment); Ramos v.
Louisiana, 140 S. Ct. 1390, 1402–03 (2020) (opinion of Gorsuch, J.); id. at 1431 (Alito, J., dissenting).
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 811

The Marks rule is instructive. Imagine if a plurality of the Court

were to adopt the view that Marks should be abandoned so that only a
majority opinion created binding precedent,87 and a fifth Justice whose
vote was necessary to create a judgment in the case adopted the position
that Marks was never actually binding law because it was an interpre-
tive methodology for precedents like Auer88 deference is for regula-
tions.89 Under Marks, the plurality position would be binding as the
“narrowest grounds” of agreement.90 But the plurality position would
be that Marks is overruled and only a true majority position is binding.
In other words, following Marks’s own rule, Marks would be overruled,
but following the precedent that the Marks rule purports to establish via
the plurality opinion, Marks would not be overruled.
Granted, such a situation would probably be a rarity. Ramos, how-
ever, came close to exemplifying this problem. There, a plurality
claimed that Apodaca v. Oregon91 provided no binding precedent under
the Marks rule because Justice Powell’s separate opinion, which was
necessary to create a judgment of the Court, would have overruled prior
precedent92 — a position which the other eight Justices in Apodaca re-
jected.93 Therefore, the Ramos plurality would have adopted a rule of
precedent about precedent that the Marks rule does not create binding
precedent when the controlling opinion “repudiate[s] this Court’s re-
peated pre-existing teachings on” an area of law.94 In other words, the
plurality would have modified the Marks rule to ensure “a single Justice
writing only for himself” does not have “the authority to bind this Court
to propositions it has already rejected.”95 To be sure, the plurality did
not view this as a partial repudiation of the Marks rule — but the other
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
87 Cf. Re, supra note 26, at 1946 (urging a majority of the Court to discard Marks).
88 Auer v. Robbins, 519 U.S. 452 (1997).
89 Cf. Kisor, 139 S. Ct. at 2444 (Gorsuch, J., concurring in the judgment) (claiming that an ab-
stract interpretive methodology is not binding on future Courts). For the notion that precedent
requires interpretation, see Craig Green, Turning the Kaleidoscope: Toward a Theory of Interpreting
Precedents, 94 N.C. L. REV. 379, 383–86 (2016), and Paul J. Watford, Richard C. Chen & Marco
Basile, Crafting Precedent, 131 HARV. L. REV. 543, 557 (2017) (reviewing GARNER ET AL., supra
note 3).
90 Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (plurality opinion)).
91 406 U.S. 404 (1972).
92 Ramos v. Louisiana, 140 S. Ct. 1390, 1402–04 (2020) (opinion of Gorsuch, J.).
93 Compare Johnson v. Louisiana, 406 U.S. 356, 369 (1972) (Powell, J., concurring) (rejecting the
idea that the Sixth Amendment applies identically to the states even post-incorporation), with id.
at 388 (Douglas, J., dissenting) (rejecting Justice Powell’s dual-track approach), id. at 395–96 (Bren-
nan, J., dissenting) (same), Apodaca, 406 U.S. at 406 (plurality opinion) (same), and id. at 414–15
(Stewart, J., dissenting) (same). Confusingly, Apodaca was decided alongside Johnson, which meant
that many of the opinions, such as Justice Powell’s disputed Apodaca opinion, were actually filed
under Johnson. Nevertheless, Apodaca was the splintered opinion that created the bizarre situation
confronted in Ramos. Compare Johnson, 406 U.S. at 357 (commanding five votes), with Apodaca,
406 U.S. at 405 (plurality opinion) (commanding only four votes).
94 Ramos, 140 S. Ct. at 1404 (opinion of Gorsuch, J.).
95 Id. at 1402.
812 HARVARD LAW REVIEW [Vol. 138:797

six Justices did.96 So, taking the plurality’s approach as an attempt to

overrule Marks in part,97 it is interesting that Justice Gorsuch did not
acknowledge the awkwardness of his position.98 The plurality’s position
was that a mere plurality could not — consistent with Marks — over-
rule settled precedent. Yet, the lead opinion in Ramos was a plurality
attempting to overrule what the other Justices took as a settled applica-
tion of Marks.99 Assume for a minute that Justice Gorsuch’s position
was the narrowest one in Ramos concerning Marks.100 Under Marks,
the view that a plurality opinion cannot overrule prior precedent there-
fore would be controlling.101 But under the Ramos plurality’s view that
the Marks rule now says is controlling, a plurality opinion that overrules
prior precedent cannot be controlling.102 By attempting to raise the bar
for overruling precedent, the Ramos plurality has ensured that its own
rule is invalid.103 The point is that the nature of precedent about prec-
edent creates this paradoxical situation that makes one’s head hurt if
thought about for too long. As a result, there needs to be a way out of
this problem.
Fortunately, the solutions from before can help. If the decision to
raise the bar for overruling — just like the decision to lower the bar —
is truly a merits question without any consideration for stare decisis,
then it does not matter if Case X does not meet Case Y’s new criteria for
overruling. Case Y can simply replace Case X’s framework based on a
merits judgment that Case X was wrong. And if stare decisis does not
attach to precedent about precedent, then it is possible to avoid the
Marks/Ramos-plurality problem. It does not matter whether the Ramos
plurality’s view of Marks is precedential or not because the Court in a
future case can always resolve the question anew based on its own view

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
96 Compare id. at 1403 (claiming Apodaca is not binding), with id. at 1409–10 (Sotomayor, J.,
concurring in part) (treating Apodaca as precedent), id. at 1416–20 (Kavanaugh, J., concurring in
part) (same), and id. at 1427–29 (Alito, J., dissenting) (same). Justice Thomas also treated Apodaca
as binding for the Due Process Clause, see id. at 1424–25 (Thomas, J., concurring in the judgment),
but he would have decided the case under the Privileges or Immunities Clause, id. at 1425.
97 See Varsava, supra note 21, at 125 (claiming Justice Gorsuch’s approach “represents a signif-
icant departure from prevailing judicial norms”).
98 But see Ramos, 140 S. Ct. at 1432 (Alito, J., dissenting) (noting the “irony” of a fractured
opinion criticizing Apodaca as “fractured” and therefore not binding (quoting id. at 1397 (majority
opinion))).
99 See id. at 1403–04 (opinion of Gorsuch, J.) (quoting id. at 1430–31 (Alito, J., dissenting)).
100 This point is understandably disputable. Cf. The Supreme Court, 2019 Term — Leading
Cases, 134 HARV. L. REV. 410, 528–29 (2020) (discussing the confused nature of Marks and the
narrowest grounds rule post-Ramos).
101 See Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153,
169 n.15 (1976) (plurality opinion)).
102 Ramos, 140 S. Ct. at 1402–03 (opinion of Gorsuch, J.).
103 To tie things back together, the Ramos plurality is like Case Y with its higher bar, and the
Marks rule is like Case X with its lower bar.
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 813

of the merits.104 The same implication holds if the Court cannot meth-
odologically bind itself; neither Marks nor the Ramos plurality’s revision
of Marks affects future Courts from a precedent about precedent per-
spective. The Court is entitled to determine whether a prior fractured
case is entitled to stare decisis based on its own views. It is not bound
by Marks or any other rule. Finally, if precedent about precedent is
permissive, then the Ramos plurality could have lawfully followed
Marks, but it did not have to do so.105 Likewise, in the future, the Court
can continue to treat Marks as permissive precedent about precedent,106
or it can reevaluate its rules for fractured decisions.107
At bottom, if precedent about precedent does not apply to itself and
overruling it does not trigger stare decisis considerations, judges and
scholars can avoid some of the problems that the paradox of precedent
about precedent seems to present. This is just one possible way of con-
ceptualizing the unique status of precedent about precedent, but it has
the benefit of making meta-precedent still a worthwhile inquiry for all
other cases. The other conceptualizations — rejecting methodological
binding and viewing precedent as permission — are also viable. Right
now, however, the Court is not thinking hard about the status of prece-
dent about precedent or its implications.
B. The Problem of Individual Approaches to
Precedent About Precedent
The paradox also affects individual Justices’ approaches to prece-
dent about precedent. Yet this phenomenon too goes unrealized in the
Court’s current writings on precedent. Earlier, precedent about prece-
dent was defined as, at a minimum, something a majority of the Court
viewed as binding.108 That means that idiosyncratic views, such as Jus-
tice Thomas’s, do not count as precedent about precedent no matter
how many times they are reiterated in concurrences. But what happens
when members of the Court do not follow the Court’s precedent about

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
104 This does create some difficulty for lower courts attempting to determine the scope of the
Marks rule moving forward. See The Supreme Court, 2019 Term — Leading Cases, supra note 100,
at 529. But see Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential Con-
straint, 69 STAN. L. REV. 795, 799 (2017) (arguing lower courts are already in a state of confusion
regarding Marks).
105 See Re, supra note 16, at 920.
106 Whether the permissive aspect of Marks has been withdrawn by the Ramos plurality is one
final wrinkle. See id. at 921–22. But even if Ramos now supplies the permissive precedent, the
nature of permissive precedent means that the Court could still return to Marks if that were the
correct rule of law. See id. at 920.
107 See, e.g., Re, supra note 26, at 1946 (proposing a complete elimination of Marks); Williams,
supra note 104, at 839–44 (proposing a “shared agreement” approach to Marks, id. at 839).
108 See supra note 16 and accompanying text.
814 HARVARD LAW REVIEW [Vol. 138:797

precedent?109 Or worse yet, what if a panel on the court of appeals

believes that the circuit’s horizontal precedent rules, which were
adopted as Circuit Rules, are unconstitutional?110 Precedent about prec-
edent does not really matter if individual Justices or judges do not follow
it.111 This section discusses the problems that individualized approaches
to stare decisis create.
The preeminent example of the problem of an individual rejection
of precedent about precedent is Justice Thomas’s approach in Gamble
v. United States.112 There, Justice Thomas outlined a different stare
decisis approach that focused on the nature of the prior decision’s er-
ror.113 Justice Thomas argued that the Court can adhere to incorrect
prior decisions so long as they are not “demonstrably erroneous,” but
that judges are not bound by wrongly decided precedent regardless of
the precedent’s workability or reliance interests.114 Justice Thomas’s
view, then, looks very similar to the precedent as permission view (alt-
hough with mandatory overruling of demonstrably erroneous prece-
dents).115 His view certainly does not follow the Court’s precedents
about stare decisis.116

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
109 See, e.g., Gamble v. United States, 139 S. Ct. 1960, 1981–88 (2019) (Thomas, J., concurring).
Justice Thomas’s view suggests that his approach to precedent about precedent is constitutionally
mandated rather than a judicially crafted doctrine. Compare id., with Ramos v. Louisiana, 140 S.
Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in part) (quoting 1 WILLIAM BLACKSTONE,
COMMENTARIES *69; THE FEDERALIST NO. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke
ed., 1961); Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring)) (implicitly
suggesting a common law basis for his approach to precedent about precedent).
110 See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL’Y
23, 25–28 (1994). Interestingly, despite fulsome debate in the Supreme Court about the proper stare
decisis framework, see, e.g., Re, supra note 16, at 908 (“[T]he U.S. Supreme Court has become unu-
sually preoccupied with issues of precedent.”), there is remarkably little criticism of the law-of-the-
circuit doctrine from lower court judges, see Mead, supra note 12, at 799–800 (“Today, judges accept
the law-of-the-circuit rules without major objection . . . .”). For a few, limited examples of scholarly
criticism, see Henry J. Dickman, Note, Conflicts of Precedent, 106 VA. L. REV. 1345, 1357–63
(2020), and Wyatt G. Sassman, How Circuits Can Fix Their Splits, 103 MARQ. L. REV. 1401, 1431–
32, 1451 (2020). But see Thomas B. Bennett, There Is No Such Thing as Circuit Law, 107 MINN.
L. REV. 1681, 1686 (2023) (drawing an important distinction between the law of the circuit
for horizontal precedent purposes and substantive law purposes that is often elided in these
discussions).
111 See Ramos, 140 S. Ct. at 1432 n.16 (2020) (Alito, J., dissenting) (“It is also important that the
Court as a whole adhere to its ‘precedent[s] about precedent.’ If individual Justices apply different
standards for overruling past decisions, the overall effects of the doctrine will not be neutral.” (al-
teration in original) (citation omitted) (quoting Alleyne v. United States, 570 U.S. 99, 134 (2013)
(Alito, J., dissenting))).
112 139 S. Ct. 1960 (2019).
113 See id. at 1984–86 (Thomas, J., concurring).
114 Id. at 1984.
115 See Re, supra note 16, at 916–18 (discussing Justice Thomas’s opinion in relation to precedent
as permission); see also Varsava, supra note 21, at 131–32 (echoing this idea).
116 Importantly, Justice Thomas has not just called for the Court to reconsider its approach to
stare decisis, but he has also voted accordingly. See Ramos, 140 S. Ct. at 1424 (Thomas, J., concur-
ring in the judgment) (rejecting the Court’s due process incorporation line of cases as “demonstrably
erroneous” without considering any other factors).
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 815

Voting based on a different stare decisis analysis weakens precedent

about precedent overall because even if precedent about precedent is
not binding on itself, the Court’s rhetoric treats it as binding when ap-
plied to other cases.117 But if one or more Justices take a different ap-
proach than the majority does about the proper standard for stare
decisis, the bindingness of precedent about precedent is watered down.
Imagine if the Court’s precedent about precedent required a case to meet
factors A, B, and C to warrant overruling. In a particular case, four
Justices believe a prior case has met all three factors, four Justices be-
lieve the prior case has met none, and the final Justice believes the case
has met factor A. Should the prior case be overruled? In the abstract
sense, the answer should be “no” — five Justices have decided that the
three factors necessary for overruling have not been met. But if the
ninth Justice believes that only factor A should be necessary for over-
ruling, then the Court will overrule the prior case because a majority of
the Court thinks the case should be overruled, even though a majority
does not think that the case satisfies the criteria that the Court’s prece-
dent about precedent outlines. Thus, one arrives at a result that seems
problematic if precedent about precedent is taken seriously.
But Justice Thomas is not alone. There is also the phenomenon of
the “perpetual dissent.”118 This is the practice of individual Justices
continuing to author “opinions that reiterate a past dissenting view and
then offer a rationale different from the majority’s (either to concur
or dissent)” because the “Justice refuses to accept the rule of a prior
decision . . . as controlling authority.”119 The most famous of these is
Justices Brennan’s and Marshall’s standard practice of dissenting from
the constitutionality of the death penalty,120 but the practice exists in
multiple areas of law across judicial ideology.121 Interestingly, when
Justices engage in perpetual dissent, they typically do not employ the
Court’s stare decisis framework; instead, they focus on reiterating their
view that the prior case or line of cases was wrongly decided on the

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117 See, e.g., cases cited supra note 72.
118 Allison Orr Larsen, Essay, Perpetual Dissents, 15 GEO. MASON L. REV. 447, 447 (2008); see
also Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 HARV. L. REV. 824, 840
(2023) (“It seems that virtually all Justices eventually pick topics for perpetual dissent, stare decisis
notwithstanding.”).
119 Larsen, supra note 118, at 451.
120 They did so over 2,100 times. Michael Mello, Adhering to Our Views: Justices Brennan and
Marshall and the Relentless Dissent to Death as a Punishment, 22 FLA. ST. U. L. REV. 591, 593
(1995).
121 See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 97 (2000) (Stevens, J., dissenting in part
and concurring in part) (“Despite my respect for stare decisis, I am unwilling to accept Seminole
Tribe as controlling precedent.”); Timbs v. Indiana, 139 S. Ct. 682, 692 (2019) (Thomas, J., concur-
ring in the judgment) (“I . . . decline to apply the ‘legal fiction’ of substantive due process.” (quoting
McDonald v. City of Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring in part and concur-
ring in the judgment))).
816 HARVARD LAW REVIEW [Vol. 138:797

merits.122 That suggests that when Justices engage in perpetual dissent,

they are ignoring the Court’s precedent about precedent and focusing
solely on the merits. Again, this waters down the practical effect of
precedent about precedent. “Precedent about precedent is usually bind-
ing,” the perpetual dissenters seem to say, “but not when it comes to this
issue about which I really care.”123
This rejection of precedent about precedent, either as a whole frame-
work (in the case of Justice Thomas) or in specific applications (in the
case of some perpetual dissenters), is possible because precedent about
precedent is not binding on itself. Therefore, individual Justices can
make a merits decision that they will not adhere to the Court’s prece-
dents about precedent in certain contexts without worrying about any
other stare decisis considerations.124 Thus, it seems that the paradox of
precedent about precedent shapes judicial behavior by allowing for
these individualized approaches. However, the earlier discussion of po-
tential solutions to the problem of overruling precedent about precedent
suggested that even if precedent about precedent is not binding on itself,
there is value in seeing it as binding for all other cases.125 In other
words, Casey was not binding when determining whether to overrule
Casey as precedent about precedent, but it was binding when deciding
whether to overrule other decisions.126 When individual Justices take a
different approach, however, it looks like precedent about precedent is
not binding even when applied to other cases.
There are a couple of possible solutions to this quandary as well.
One possibility is to write off these individual views as illegitimate — an
example of Justices “elevating [their] individual jurisprudence” above
the Court’s own doctrine.127 From a purely theoretical standpoint, this
position has appeal. It fits with the view that precedent about precedent
is constraining at least when applied to other cases, even if not when
applied to itself. When Justices ignore precedent about precedent in
favor of their own views, they devalue the constraining force of prece-
dent about precedent and thereby weaken the value of precedent as a

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
122 See, e.g., Timbs, 139 S. Ct. at 691–92; Alleyne v. United States, 570 U.S. 99, 133–34 (2013)
(Alito, J., dissenting). But see Kimel, 528 U.S. at 97–99 (Stevens, J., dissenting in part and concur-
ring in part) (engaging in a brief stare decisis analysis).
123 For most perpetual dissents, the dissenters were also on the Court when the original precedent
was decided, see Larsen, supra note 118, at 454–58 (cataloging perpetual dissents on the Rehnquist
Court), but this is not a necessary condition, see, e.g., United States v. Taylor, 142 S. Ct. 2015, 2033
n.1 (2022) (Alito, J., dissenting) (citing, inter alia, Alleyne, 570 U.S. at 132–34 (Alito, J., dissenting))
(noting his perpetual dissent with respect to Apprendi v. New Jersey, 530 U.S. 466 (2000), a case
decided before he joined the Court).
124 See supra section III.A.1, pp. 806–10.
125 See supra section III.A.1, pp. 806–10.
126 See, e.g., Lawrence v. Texas, 539 U.S. 558, 577 (2003) (citing Planned Parenthood of Se. Pa. v.
Casey, 505 U.S. 833, 844, 855–56 (1992)) (relying on Casey’s conception of reliance interests).
127 Larsen, supra note 118, at 469.
2025] THE PARADOX OF PRECEDENT ABOUT PRECEDENT 817

whole.128 From a practical standpoint, however, this view cannot ex-

plain why Justices continue to vote according to their own views on
precedent rather than the Court’s.129 It also ignores the fact that there
is no disciplining method for Justices who refuse to follow the Court’s
precedent about precedent.130 Thus, this view fits well with some of the
theoretical arguments from before, but it may suffer in its description of
actual practice.
That leads to the nonbinding view of precedent about precedent
again. If precedent about precedent is not constraining on the Justices
either because the Court cannot methodologically bind its members or
because precedent about precedent is merely permissive, then individual
Justices can legitimately refuse to follow precedent about precedent in
favor of their own views.131 This view can, therefore, explain why Jus-
tices continue to favor personal precedent over institutional precedent
about precedent,132 but it does not explain why individual Justices also
continue to invoke the idea that the Court as a whole must adhere to its
precedent about precedent.133
To summarize, the paradox of precedent about precedent spills over
into individual approaches to precedent about precedent. There are dif-
ferent ways of thinking about these individual approaches, each of
which offers its own set of justifications. Those approaches each present
their own weakness as well. In the status quo, however, the Court and
individual Justices neglect to think about these problems when they dis-
cuss precedent about precedent.

CONCLUSION
Precedent about precedent presents a paradox that gives it a unique
status within our system of stare decisis because a court overruling prec-
edent about precedent will not apply the stare decisis framework that
the precedent about precedent established. Dobbs is a recent example
of this phenomenon, but many critics of Dobbs have faulted the Court
for not applying Casey’s stare decisis framework even as Dobbs over-
ruled Casey as precedent about precedent. These critiques make little
sense in light of the unique nature of precedent about precedent. Of

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
128 Cf. Varsava, supra note 21, at 133 (“[A] ‘precedent’ that stands for the view that precedent is
not all that binding is self-defeating, or at least undermining.”).
129 See Re, supra note 118, at 835, 839–40.
130 See Re, supra note 16, at 931. In this way, lower court judges with individual views about
precedent might be different from Supreme Court Justices because the judges can be disciplined
via appellate review.
131 See id. at 946–47.
132 See id; cf. Re, supra note 118, at 842–45 (explaining how personal precedent forms the basis
of “[p]reserving [i]nstitutional [p]recedent,” id. at 842).
133 See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390, 1440 (2020) (Alito, J., dissenting); Dobbs v.
Jackson Women’s Health Org., 142 S. Ct. 2228, 2320 (2022) (Breyer, Sotomayor & Kagan, JJ.,
dissenting).
818 HARVARD LAW REVIEW [Vol. 138:797

course, that unique nature creates issues that the Court too often ignores.
In particular, the paradox of precedent about precedent raises difficult
questions about whether one Court can bind a future Court to a partic-
ular stare decisis framework and about the binding nature of precedent
itself. This is an especially pressing problem on a Court deeply divided
about the weight and value of stare decisis.134 It also demonstrates the
difficulty that individual views about precedent create for a coherent
system of precedent about precedent. This Note does not purport to
resolve all of these problems, but it offers some preliminary answers.
More than that, however, it is a call to future Courts and scholars to
think more seriously about the concept of precedent about precedent.

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134 Compare, e.g., Gamble v. United States, 139 S. Ct. 1960, 1981–88 (2019) (Thomas, J., concur-
ring), Dobbs, 142 S. Ct. at 2279–80, and Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2292–
93 (2024) (Gorsuch, J., concurring), with Dobbs, 142 S. Ct. at 2348–50 (Breyer, Sotomayor & Kagan,
JJ., dissenting), and Loper Bright, 144 S. Ct. at 2306–10 (Kagan, J., dissenting).