{"id":430,"date":"2026-07-24T13:43:08","date_gmt":"2026-07-24T13:43:08","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=430"},"modified":"2026-07-24T13:43:08","modified_gmt":"2026-07-24T13:43:08","slug":"is-elena-kagan-the-stare-decisis-justice","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=430","title":{"rendered":"Is Elena Kagan the stare decisis justice?"},"content":{"rendered":"
\n

When asked during a 2022 appearance at the University of Pennsylvania about the opinions of which she was most proud, Justice Elena Kagan cited her 2015 opinion in Kimble v. Marvel Entertainment, LLC<\/em> as one she had \u201cthought about a lot over the years.\u201d As a legal matter, the case was a relatively obscure one, arising from a dispute over the royalties from the patent for a Spider-Man toy. The inventor of the toy asked the court to overrule , a 1964 decision holding that a patent holder cannot charge royalties for the use of his invention after the patent expires.<\/p>\n

Read more Justice Kagan says court gets a \u201cbad rap\u201d<\/a><\/p>\n

By a vote of 6-3, the Supreme Court left Brulotte <\/em>in place. Kagan\u2019s opinion for the majority is perhaps best remembered for its discussion of stare decisis<\/em>, the principle that courts should generally not overturn their earlier rulings unless there is a very good reason to do so. Kagan called stare decisis<\/em> \u201c\u2018a foundation stone of the rule of law.\u2019\u201d And she concluded: \u201cWhat we can decide, we can undecide. But stare decisis<\/em> teaches that we should exercise that authority sparingly.\u201d<\/p>\n

In her discussion of Kimble<\/em> at the University of Pennsylvania, Kagan told the audience that her opinion \u201ccommitted me to a lot by writing it.\u201d Indeed, since that 2015 decision, Kagan has been perhaps the staunchest defender of precedent on the court.<\/p>\n

For example, in the 2017 case of Janus v. American Federation of State, County, and Municipal Employees<\/em>, the court \u2013 in a decision by Justice Samuel Alito \u2013 held that government employees who are represented by, but do not belong to, a union cannot be required to pay a fee to cover the union\u2019s cost to negotiate a contract that applies to all employees. That decision overruled the 1977 decision in Abood v. Detroit Board of Education<\/em>, holding that such fees did not violate the First Amendment.<\/p>\n

Kagan dissented, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. \u201cRarely,\u201d Kagan wrote, \u201cif ever has the Court overruled a decision\u2014let alone one of this import\u2014with so little regard for the usual principles of stare decisis<\/em>.\u201d<\/p>\n

In 2019, in Knick v. Township of Scott<\/em>, the court ruled that a property owner can bring a federal claim that a local town ordinance violates the Fifth Amendment\u2019s ban on taking private property without just compensation when the government takes the property. The court overturned its 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County<\/em>, holding that a property owner must first seek compensation from the state instead.<\/p>\n

Kagan wrote the dissent, which was joined by her fellow Democratic appointees. She emphasized that in Franchise Tax Board of California v. Hyatt<\/em>, another recent decision reversing the court\u2019s prior precedent, Breyer\u2019s dissent had \u201cconcluded: \u2018Today\u2019s decision can only cause one to wonder which cases the Court will overrule next.\u2019 Well,\u201d Kagan said, \u201cthat didn\u2019t take long. Now one may wonder yet again.\u201d<\/p>\n

Not all of the decisions in which Kagan voted against overruling precedent divided strictly on ideological lines, however. In 2018\u2019s South Dakota v. Wayfair<\/em>, the court \u2013 in an opinion by Justice Anthony Kennedy, joined by Ginsburg, Alito, and Justices Clarence Thomas and Neil Gorsuch, held that out-of-state sellers without any physical presence in a state can nonetheless be required to collect taxes on sales made within the state. In so holding, the majority overruled its 1992 decision in Quill Corp. v. North Dakota<\/em>. \u201cThough Quill<\/em> was wrong on its own terms when it was decided in 1992,\u201d Kennedy reasoned, \u201csince then the Internet revolution has made its earlier error all the more egregious and harmful.\u201d<\/p>\n

Kagan (along with Breyer and Sotomayor) joined a dissent by Chief Justice John Roberts. He wrote that Congress, rather than the courts, should make any changes \u201cwith the potential to disrupt the development of such a critical segment of the economy.\u201d<\/p>\n

Kagan\u2019s split from the other Democratic appointees was even sharper two years later, in Ramos v. Louisiana<\/em>, in which Gorsuch \u2013 joined by Ginsburg, Breyer, Sotomayor, and Justice Brett Kavanaugh, with Thomas agreeing with the result \u2013 wrote for the majority in holding that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious offense.<\/p>\n

Alito dissented, in an opinion that Roberts joined in full and Kagan joined in large part. He argued that the court was overruling its 1972 decision in , which upheld the use of nonunanimous verdicts in state criminal trials. Alito said that he \u201cwould not overrule Apodaca<\/em>. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance.\u201d<\/p>\n

Kagan\u2019s support for, and adherence to, stare decisis<\/em> has perhaps reached its zenith in recent years, as shown in the court\u2019s 2022 decision in Dobbs v. Jackson Women\u2019s Health Organization<\/em>. In that case, the court overturned the court\u2019s landmark rulings in and , recognizing a constitutional right to an abortion.<\/p>\n

A rare joint dissent by Breyer, Sotomayor, and Kagan criticized what they characterized as \u201c[t]he majority\u2019s cavalier approach to overturning this Court\u2019s precedents.\u201d<\/p>\n

Two years later, in Loper Bright Enterprises v. Raimondo<\/em>, the court overturned its 1984 decision in , holding that when a federal law is ambiguous, courts should generally defer to an agency\u2019s reasonable interpretation of that law.<\/p>\n

Read more Trump\u2019s petition for reconsideration of $5 million verdict in E. Jean Carroll case may be considered by the justices in August<\/a><\/p>\n

Kagan dissented, joined by Sotomayor and Justice Ketanji Brown Jackson (who was recused from Loper Bright<\/em>, which was consolidated with Relentless, Inc. v. Department of Commerce<\/em>). She described the court\u2019s ruling in Chevron<\/em> as \u201centrenched precedent, entitled to the protection of stare decisis<\/em>, as even the majority acknowledges. In fact,\u201d she argued, \u201cChevron<\/em> is entitled to the supercharged version of that doctrine because Congress could always overrule the decision, and because so many governmental and private actors have relied on it for so long.\u201d<\/p>\n

Kagan\u2019s adherence to precedent has also led her to accept decisions from which she originally dissented when these issues arise in subsequent cases. During the 2025-26 term, for example, the court in Wolford v. Lopez<\/em> struck down a Hawaii law that barred gun owners with concealed-carry permits from bringing their guns onto private property that is open to the public unless they have the property owner\u2019s express permission.<\/p>\n

Although all three Democratic appointees dissented, Kagan did not join Jackson\u2019s dissenting opinion, which Sotomayor joined. Jackson criticized the justices\u2019 2022 decision in New York State Rifle & Pistol Association v. Bruen<\/em>, in which the majority ruled that that courts should only uphold gun restrictions that are \u201cconsistent with the Nation\u2019s historical tradition of firearm regulation.\u201d In Jackson\u2019s view, the court\u2019s \u201cadoption of the Bruen<\/em> test was a grave mistake.\u201d<\/p>\n

Kagan argued in her own dissenting opinion only that the Hawaii law was \u201ca modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner\u2019s affirmative consent.\u201d And she dismissed the majority\u2019s contention that those older laws \u201chad a special (though by no means exclusive) concern with poaching.\u201d Quoting Bruen<\/em>, she emphasized that \u201c\u2018[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied\u2019 earlier generations.\u201d<\/p>\n

To be sure, Kagan has voted several times to overrule the court\u2019s earlier decisions. But even here, she has joined opinions explaining why overruling such precedent better serves the principle of stare decisis<\/em>. For example, in 2015\u2019s Johnson v. United States<\/em>, she joined Justice Antonin Scalia\u2019s opinion for the majority, which held that a provision of the Armed Career Criminal Act allowing courts to increase a defendant\u2019s sentence if he had committed any felony that \u201cinvolves conduct that presents a serious potential risk of physical injury to another\u201d violates the Constitution\u2019s guarantee of due process because it is too vague. In so holding, the court overruled its decisions in and , in which \u201cthe Court rejected suggestions by dissenting Justices that the\u201d provision at the center of the case \u201cviolates the Constitution\u2019s prohibition of vague criminal laws.\u201d<\/p>\n

In the majority\u2019s opinion, Scalia wrote that the case was the first one \u201cin which the Court has received briefing and heard argument from the parties about whether the\u201d provision at the center of the case was unconstitutional \u2013 which, he said, means that the Supreme Court is \u201c\u2018less constrained to follow precedent.\u2019\u201d \u201cStanding by [its prior decisions] would undermine, rather than promote, the goals that stare decisis<\/em> is meant to serve,\u201d Scalia added.<\/p>\n

And on the same day as the court\u2019s ruling in Johnson<\/em>, Kagan joined Kennedy\u2019s opinion for the majority in Obergefell v. Hodges<\/em>, which recognized a right to same-sex marriage. That decision expressly overruled Baker v. Nelson<\/em>, which Kennedy described as \u201ca one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.\u201d<\/p>\n

The following year, in Hurst v. Florida<\/em>, Kagan joined a decision by Sotomayor holding that Florida\u2019s capital sentencing scheme, in which the jury renders an \u201cadvisory sentence,\u201d but the judge makes the key findings required to impose the death penalty, violates the Sixth Amendment right to a jury trial. In reaching that conclusion, the court overruled the Supreme Court\u2019s earlier decisions in Hildwin v. Florida<\/em> and Spaziano v. Florida<\/em> upholding the state\u2019s capital sentencing scheme. The court also rejected the state\u2019s argument that stare decisis<\/em> required the court to uphold the scheme, calling it \u201cwrong, and irreconcilable with\u201d the court\u2019s decision in , holding that juries must find any facts that increase the penalty for a crime beyond the statutory maximum.<\/p>\n

And in 2019\u2019s Herrera v. Wyoming<\/em>, Kagan joined another Sotomayor decision overruling prior precedent \u2013 this time an opinion holding that the hunting right of the Crow Tribe of Indians under an 1868 treaty with the United States had not been extinguished when Wyoming became a state in 1890. Among other things, the majority indicated that it was impossible to reconcile two prior decisions.<\/p>\n

In her 2022 appearance at the University of Pennsylvania, Kagan outlined why, in her view, the doctrine of stare decisis<\/em> is so important. First, she first cited the need for the law to be stable. People rely on the existing law and plan their lives around it, she emphasized. Next, she contended, \u201cjudges should be humble\u201d and recognize that other judges have come before them, and that \u201claw develops best when it develops slowly and incrementally.\u201d Third and finally, she suggested, adhering to precedent helps to \u201cprevent the court from becoming politicized.\u201d If new judges join a court and quickly change the law, \u201cit starts not to look like law anymore,\u201d and the court instead begins to look \u201cmore like a political institution,\u201d she posited. \u201cAnd that\u2019s something,\u201d Kagan concluded, \u201cthat the courts need to be incredibly cognizant of and wary about.\u201d<\/p>\n

Conservative critics have suggested that Kagan\u2019s strong support for stare decisis<\/em> stems from another motivation: the \u201cdesire to prevent an increasingly conservative Supreme Court from overturning precedents she strongly supports.\u201d Regardless of her motivation, however, it is clear that she has made adherence to precedent a bedrock of her jurisprudence.<\/p>\n

We will soon learn if this remains the case. In the fall, in Kian v. Florida<\/em>, the justices will hear oral arguments in the case of a Florida man who was convicted by a six-person jury of working as a chiropractor with a suspended license. Hamed Kian argues that he had a constitutional right to a 12-person jury, and he has asked the court to overrule its 1970 decision in , which rejected a challenge to that state\u2019s six-person jury system. If past is prologue, Kagan\u2019s vote could prove harder to secure than Kian might hope.<\/p>\n

Read more Nine justices, nine styles<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

When asked during a 2022 appearance at the University of Pennsylvania about the opinions of which she was most proud, Justice Elena Kagan cited her 2015 opinion in Kimble v. Marvel Entertainment, LLC as one she had \u201cthought about a lot over the years.\u201d As a legal matter, the case was a relatively obscure one, […]<\/p>\n","protected":false},"author":1,"featured_media":429,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":["post-430","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-scotus-focus"],"yoast_head":"\nIs Elena Kagan the stare decisis justice? - 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=430\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Is Elena Kagan the stare decisis justice? - American Service Review\" \/>\n<meta property=\"og:description\" content=\"When asked during a 2022 appearance at the University of Pennsylvania about the opinions of which she was most proud, Justice Elena Kagan cited her 2015 opinion in Kimble v. 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