{"id":198,"date":"2026-06-16T14:11:26","date_gmt":"2026-06-16T14:11:26","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=198"},"modified":"2026-06-16T14:11:26","modified_gmt":"2026-06-16T14:11:26","slug":"how-supreme-court-precedents-die-before-they-are-overruled","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=198","title":{"rendered":"How Supreme Court precedents die before they are overruled"},"content":{"rendered":"
\n

When the Supreme Court says a precedent has been \u201cabandoned,\u201d the real work has already been done.<\/p>\n

Read more Nine days in June<\/a><\/p>\n

That was the story of\u00a0Lemon v. Kurtzman<\/em>, decided in 1971. For decades, the court invoked, revised, sidestepped, and criticized\u00a0Lemon<\/em>\u2019s approach to the establishment clause of the First Amendment. The formal reports still contained the case. Lawyers still cited it. Lower courts still had to account for it. Yet the governing center of gravity had shifted. When the court later said in 2022\u2019s\u00a0Kennedy v. Bremerton School District<\/em> that it had \u201clong ago abandoned\u201d\u00a0Lemon<\/em>, the statement confirmed a process already visible across years of doctrine.<\/p>\n

That process is not unique to\u00a0Lemon<\/em>. Supreme Court precedents often lose authority gradually. But how this authority wanes varies dramatically. A case may be narrowed, distinguished, criticized, or confined to its facts. It may also be overruled\u00a0sub silentio. A later line of decisions may begin doing the doctrinal work once assigned to the original case. The court may refuse to extend a precedent while leaving the original holding formally intact. And in some instances, it may condemn a decision as a constitutional failure without overruling it in the ordinary sense.<\/p>\n

This article takes a look at the many ways in which precedents meet their demise.<\/p>\n

Breaking down the data<\/strong><\/p>\n

Several major precedents now sit somewhere between full vitality and formal overruling. 1971\u2019s\u00a0Bivens v. Six Unknown Named Agents<\/em>, allowing persons to bring certain suit against federal officers,\u00a0remains on the books, but the court has made any extensions of it exceedingly difficult to recognize.\u00a0Humphrey\u2019s Executor v. United States<\/em>, for nearly a century a central case on independent agencies and the president\u2019s power to remove the heads of them, is under renewed pressure, especially with the soon-to-be-decided case of\u00a0Trump v. Slaughter<\/em>\u00a0that directly questions this precedent.\u00a0Employment Division v. Smith<\/em>\u00a0continues to govern free exercise claims under the First Amendment, yet the court\u2019s more recent doctrines have narrowed the field of laws that receive such treatment.<\/p>\n

Other precedents have already completed different versions of the same arc:\u00a0Abood v. Detroit Board of Education<\/em>, which upheld that public sector non-union employees could be required to pay union fees, was overruled in\u00a0Janus v. AFSCME<\/em>\u00a0while\u00a0Korematsu v. United States<\/em>, which upheld the internment of Japanese-American citizens during World War II,\u00a0was repudiated as having \u201cno place in law under the Constitution.\u201d<\/p>\n

Citation data offer one way to trace these developments. The numbers cannot answer by themselves whether a precedent remains healthy. They can, however, identify patterns: how much recognition a case receives, how often courts cite it negatively, how frequently the Supreme Court itself participates in that negative treatment, and whether citations are rising or falling in recent years.<\/p>\n

The decisions have large disparities in their overall cite counts.\u00a0Bivens<\/em>\u00a0has more than 38,000 citations in the data, far more than the other cases examined here. It also has the largest raw number of negative citations. That figure makes sense given the field.\u00a0Bivens<\/em>\u00a0operates across criminal procedure, federal law enforcement, prison, detention, immigration, and constitutional-remedies litigation. A precedent that governs recurring claims against federal officers will naturally appear in far more opinions than a case about, say, public-sector union fees.<\/p>\n

The more revealing figure is negative-treatment share, or negative citations as a percentage of total citations. On that measure,\u00a0Employment Division v. Smith<\/em>\u00a0has the highest rate in this group, at 13.4%.\u00a0Lemon<\/em>\u00a0follows at 9.2%. Humphrey\u2019s Executor<\/em>\u00a0and\u00a0Korematsu<\/em>\u00a0sit near 5%.\u00a0Bivens<\/em>, despite its large raw number of negative citations, has a negative-treatment share of only 1.7%.<\/p>\n

The Supreme Court\u2019s role adds another layer. Before\u00a0Janus<\/em>,\u00a0Abood<\/em>\u00a0had 58 negative citations, seven of them from the Supreme Court. That is a notable share for a precedent that had not yet been overruled. It suggests an erosion pattern driven less by lower-court resistance than by signals from the court itself. In other words, lower courts continued to work within\u00a0Abood<\/em>\u00a0while the Supreme Court increasingly treated the precedent as vulnerable.<\/p>\n

Recent citation patterns also help separate dormant precedents from live ones.\u00a0Humphrey\u2019s Executor<\/em>\u00a0has only 527 total citations in the data, but 118 of them occurred from 2022 through 2026. That recent concentration reflects the renewed salience of presidential removal and independent-agency doctrine.\u00a0Smith<\/em>\u00a0presents a different picture: a larger citation universe, the highest negative-treatment share in this set, and continued litigation over its meaning.<\/p>\n

The cases fall into several recurring patterns.\u00a0Abood<\/em>\u00a0shows erosion followed by express overruling.\u00a0Lemon<\/em>\u00a0shows functional abandonment through replacement of the governing test.\u00a0Bivens<\/em>\u00a0shows confinement without formal overruling.\u00a0Korematsu<\/em>\u00a0shows historical repudiation.\u00a0Humphrey\u2019s Executor<\/em>\u00a0and\u00a0Smith<\/em>\u00a0show live questioning. Together, they illustrate how much precedential change occurs before the court uses the word \u201coverruled.\u201d<\/p>\n

Erosion followed by overruling:\u00a0Abood<\/em><\/strong><\/p>\n

The clearest example in the group is\u00a0Abood v. Detroit Board of Education<\/em>. Decided in 1977,\u00a0Abood<\/em>\u00a0permitted public-sector unions to collect agency fees from nonmembers for collective-bargaining expenses, while barring forced support for ideological or political activities. For decades, that compromise structured First Amendment challenges to public-sector union funding.<\/p>\n

By the time the court decided\u00a0Janus v. AFSCME<\/em>\u00a0in 2018, however,\u00a0Abood<\/em>\u00a0had already been weakened. The data show 825 total citations before\u00a0Janus<\/em>, 58 negative citations, and seven Supreme Court negative citations. That produces a negative-treatment share of about 7%. The Supreme Court\u2019s role was striking here: Roughly 12% of the negative citations came from the court itself.<\/p>\n

That makes\u00a0Abood<\/em>\u00a0a top-down erosion case. Lower courts continued to apply the precedent. The Supreme Court, meanwhile, increasingly framed the precedent as an anomaly in First Amendment law. Finally, Janus <\/em>completed things. As Justice Samuel Alito, writing for the majority, declared in that case:<\/p>\n

Abood<\/em>\u00a0was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since\u00a0Abood<\/em>\u00a0was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that\u00a0Abood<\/em>\u00a0has countenanced for the past 41 years.\u00a0Abood<\/em>\u00a0is therefore overruled.<\/p><\/blockquote>\n

The\u00a0Janus<\/em>\u00a0language matters because it shows the final stage of an erosion sequence. The court did not merely announce a new rule. It described the earlier precedent as poorly reasoned, inconsistent with later First Amendment doctrine, practically problematic, and insufficiently supported by reliance interests. That is the classic pathway from criticism to overruling: a precedent first becomes unstable in the court\u2019s own opinions, then becomes untenable when the votes align to reconsider it directly.<\/p>\n

Functional abandonment:\u00a0Lemon<\/em><\/strong><\/p>\n

Lemon v. Kurtzman<\/em>, which created a three-part test to determine if a government action violated the establishment clause,\u00a0followed a different path. The court did not dispatch it with the same clean formal overruling language that\u00a0Janus<\/em>\u00a0used for\u00a0Abood<\/em>. Yet its decline is hard to miss.<\/p>\n

For years, the court treated the\u00a0Lemon<\/em>\u00a0test as both familiar and unstable. It remained part of establishment clause vocabulary, especially in the lower courts. But the Supreme Court repeatedly declined to make it the exclusive test. In some settings, particularly cases involving public religious symbols, legislative prayer, monuments, and longstanding practices, the court turned instead to history, tradition, and context instead.<\/p>\n

The progression can be seen in the court\u2019s own language. First,\u00a0two years after being decided, Lemon<\/em>\u00a0became a \u201chelpful signpost.\u201d Then, following decades of criticism inside and outside the court, it was declared \u201cnot useful\u201d in certain cases. Finally, in\u00a0Kennedy v. Bremerton School District<\/em>, the court said it had \u201clong ago abandoned\u201d the\u00a0Lemon <\/em>test.<\/p>\n

That sequence captures functional abandonment.\u00a0Lemon<\/em>\u00a0did not disappear because courts stopped citing it. It disappeared because the court stopped treating the test as the organizing framework for establishment clause analysis before finally bringing it to an end.<\/p>\n

Read more Court adds three cases to 2026-27 docket<\/a><\/p>\n

Confinement without overruling:\u00a0Bivens<\/em><\/strong><\/p>\n

Bivens v. Six Unknown Named Agents<\/em>\u00a0presents a different problem for citation-based analysis. By raw numbers, it appears to be the largest erosion story in the dataset. It has more than 37,650 citations, including 635 negative citations. No other case in this group comes close.<\/p>\n

The scale is misleading unless its context is taken into account.\u00a0Bivens<\/em>\u00a0sits at the center of a large and recurring litigation universe. It is cited in cases where individuals seek to sue federal officers, and thus touches on federal law enforcement, prison conditions, immigration detention, national security, criminal investigations, and constitutional remedies. That makes its citation profile very different from a narrower precedent such as\u00a0Abood<\/em>, which governed a specific First Amendment question involving public-sector union fees.<\/p>\n

The modern court has repeatedly treated new\u00a0Bivens<\/em>\u00a0claims as disfavored, especially when the claim arises outside of its original Fourth Amendment search-and-seizure context.<\/p>\n

This pattern is confinement. The court leaves the original case in place while shrinking the circumstances in which it can do new work. Hesitation becomes the governing rule. Congress\u2019 failure to create a damages action, the presence of alternative remedial schemes, institutional competence, and other concerns all become reasons for courts to stop short.<\/p>\n

The court has not erased the original case. It has made the original case difficult to generalize.<\/p>\n

Historical repudiation:\u00a0Korematsu<\/em><\/strong><\/p>\n

Korematsu v. United States<\/em>\u00a0follows another path. For decades,\u00a0Korematsu, <\/em>in which the court allowed for the internment of people of Japanese descent during World War II,\u00a0stood less as a working rule than as a warning. Courts, scholars, and lawyers invoked it as an example of judicial failure during wartime. Its authority eroded through constitutional memory as much as through ordinary doctrinal development. By the time the Supreme Court addressed the case in\u00a0Trump v. Hawaii<\/em>, its practical legitimacy had already collapsed. In Chief Justice John Roberts\u2019 words:<\/p>\n

The dissent\u2019s reference to\u00a0Korematsu \u2026 <\/em>affords this Court the opportunity to make express what is already obvious:\u00a0Korematsu<\/em>\u00a0was gravely wrong the day it was decided, has been overruled in the court of history, and\u2014to be clear\u2014\u201chas no place in law under the Constitution.\u201d<\/p><\/blockquote>\n

The court\u2019s statement had the language of overruling but the posture of repudiation.\u00a0Korematsu<\/em>\u00a0was not supplying the operative rule in\u00a0Trump v. Hawaii<\/em>\u00a0in the way\u00a0Abood<\/em>\u00a0supplied the rule later rejected in\u00a0Janus<\/em>. The court instead used the occasion to declare that\u00a0Korematsu<\/em>\u00a0had long since lost any legitimate place in constitutional law.<\/p>\n

That makes\u00a0Korematsu<\/em>\u00a0a category of its own. Some precedents fade because later decisions narrow their holdings. Others are displaced by new tests.\u00a0Korematsu<\/em>\u00a0was condemned as a constitutional symbol. Its death was not mainly a product of doctrinal mechanics, but of historical judgment.<\/p>\n

Live testing:\u00a0Humphrey\u2019s Executor<\/em>\u00a0and\u00a0Employment Division v. Smith<\/em><\/strong><\/p>\n

The last category involves precedents that have not yet reached a final endpoint \u2013 but may soon. <\/p>\n

Humphrey\u2019s Executor v. United States<\/em>, which could be formally overturned this term in Trump v. Slaughter<\/em>,\u00a0is the lower-volume example. It has 527 total citations in the data, 28 negative citations, and two Supreme Court negative citations, for a negative-treatment share of about 5.3%. Standing alone, those numbers would not place it among the most visibly eroded precedents in the group. The recent trend tells a different story, however. From 2022 through 2026,\u00a0Humphrey\u2019s Executor<\/em>\u00a0received 118 citations, about 22.4% of its total citation universe.<\/p>\n

That concentration reflects renewed attention to presidential removal. For decades,\u00a0Humphrey\u2019s Executor<\/em>\u00a0stood for Congress\u2019 ability to provide removal protection for members of certain independent agencies. More recent cases have recentered the analysis around Article II and presidential control. 2020\u2019s\u00a0Seila Law LLC v. CFPB<\/em>, for example,\u00a0did not overrule\u00a0Humphrey\u2019s Executor<\/em>, but it narrowed the precedent\u2019s orbit by describing removal protection as the exception rather than the rule:<\/p>\n

But text, first principles, the First Congress\u2019s decision in 1789,\u00a0[and prior precedent] all establish that the President\u2019s removal power is the rule, not the exception. While we do not revisit\u00a0Humphrey\u2019s Executor<\/em>\u00a0or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President\u2019s removal authority.<\/p><\/blockquote>\n

The importance of that language lies in its supposed restraint. The court said it was not revisiting\u00a0Humphrey\u2019s Executor<\/em>, but it also refused to let the case become a general permission slip for removal restrictions. That is how erosion can operate before overruling. A precedent remains in place, but later doctrine reduces its domain and signals that further extension is unlikely.<\/p>\n

Employment Division v. Smith<\/em>\u00a0is different. It has a much larger citation universe and the highest negative-treatment share in this set. The data show 2,901 total citations, 388 negative citations, and 11 Supreme Court negative citations. Its negative-treatment share is 13.4%.<\/p>\n

Smith<\/em>\u00a0also sits in a field where the court has repeatedly adjusted the surrounding doctrine. In that case, the court held that neutral and generally applicable laws ordinarily do not violate the free exercise clause merely because they burden religious exercise. The modern pressure on\u00a0Smith<\/em>\u00a0comes through the meaning of \u201cneutral\u201d and \u201cgenerally applicable.\u201d If more laws affecting religious groups are characterized as underinclusive, discretionary, targeted, or non-neutral, fewer cases fall within\u00a0Smith<\/em>\u2019s deferential rule. From Fulton v. Philadelphia<\/em>, decided in 2021:<\/p>\n

Not only is it difficult to square\u00a0Smith<\/em>\u2019s interpretation with the terms of the Free Exercise Clause, the absence of any language referring to equal treatment is striking. If equal treatment was the objective, why didn\u2019t Congress say that? And since it would have been simple to cast the Free Exercise Clause in equal-treatment terms, why would the state legislators who voted for ratification have read the Clause that way?<\/p><\/blockquote>\n

That makes\u00a0Smith<\/em>\u00a0a live erosion case. The court can alter its practical reach without immediately overruling it. Each decision that narrows neutrality or general applicability leaves the formal rule standing while reducing the set of laws that can benefit from it. The current posture of free exercise litigation therefore resembles the pre-overruling stage in some respects, even though the court has not taken the full overruling question in the same direct way.<\/p>\n

Five ways precedent loses force<\/strong><\/p>\n

Viewed together, the cases show several recurring paths of precedential decline.<\/p>\n

To be clear: The categories are not necessarily rigid. A precedent may move from one to another. A case that begins as a confinement story may eventually be overruled. A precedent that appears merely weakened may become the subject of direct reconsideration once a new case presents the right vehicle. The categories instead help clarify what the data are showing.<\/p>\n

Conclusion<\/strong><\/p>\n

Formal overruling remains the clearest sign that a precedent has died. But it is rarely the only relevant event. Often, by the time the court overrules a case, abandons a test, or declares a precedent illegitimate, the surrounding doctrine has been signaling the change for years.<\/p>\n

The six precedents here capture different versions of that process.\u00a0Abood<\/em>\u00a0was criticized and narrowed before it was overruled.\u00a0Lemon<\/em>\u00a0was displaced before it was declared abandoned.\u00a0Bivens<\/em>\u00a0survives, but with little appetite for extension.\u00a0Korematsu<\/em>\u00a0was repudiated as a constitutional failure.\u00a0Humphrey\u2019s Executor<\/em>\u00a0and\u00a0Smith<\/em>\u00a0remain live, but each is being tested through the logic of newer cases.<\/p>\n

Citation data can make those patterns more visible. They show when a case remains active, when negative treatment accumulates, when the Supreme Court is participating in that erosion, and when a precedent suddenly receives renewed attention. For litigants and lower courts, it is key to understand whether the Supreme Court still treats the precedent as a rule to be applied, or as a problem to be managed.<\/p>\n

Read more Justices urged to stop Texas from enforcing age-verification and parental-consent law on apps<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

When the Supreme Court says a precedent has been \u201cabandoned,\u201d the real work has already been done. Read more Nine days in June That was the story of\u00a0Lemon v. Kurtzman, decided in 1971. For decades, the court invoked, revised, sidestepped, and criticized\u00a0Lemon\u2019s approach to the establishment clause of the First Amendment. The formal reports still […]<\/p>\n","protected":false},"author":1,"featured_media":78,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,10],"tags":[],"class_list":["post-198","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary","category-empirical-scotus"],"yoast_head":"\nHow Supreme Court precedents die before they are overruled - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=198\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"How Supreme Court precedents die before they are overruled - American Service Review\" \/>\n<meta property=\"og:description\" content=\"When the Supreme Court says a precedent has been \u201cabandoned,\u201d the real work has already been done. Read more Nine days in June That was the story of\u00a0Lemon v. Kurtzman, decided in 1971. For decades, the court invoked, revised, sidestepped, and criticized\u00a0Lemon\u2019s approach to the establishment clause of the First Amendment. 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Read more Nine days in June That was the story of\u00a0Lemon v. Kurtzman, decided in 1971. For decades, the court invoked, revised, sidestepped, and criticized\u00a0Lemon\u2019s approach to the establishment clause of the First Amendment. 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