Kavanaugh, J., concurring
Court’s precedents and for the accumulated wisdom of the judges who have previously addressed the same issue. Stare decisis is rooted in Article III of the Constitution and is fundamental to the American judicial system and to the stability of American law.
Adherence to precedent is the norm, and stare decisis imposes a high bar before this Court may overrule a precedent. This Court’s history shows, however, that stare decisis is not absolute, and indeed cannot be absolute. Otherwise, as the Court today explains, many long-since-overruled cases such as Plessy v. Ferguson, 163 U. S. 537 (1896); Lochner v. New York, 198 U. S. 45 (1905); Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940); and Bowers v. Hardwick, 478 U. S. 186 (1986), would never have been overruled and would still be the law.
In his canonical Burnet opinion in 1932, Justice Brandeis stated that in “cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406−407 (1932) (dissenting opinion). That description of the Court’s practice remains accurate today. Every current Member of this Court has voted to overrule precedent. And over the last 100 years beginning with Chief Justice Taft’s appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent. Many of those Justices have voted to overrule a substantial number of very significant and longstanding precedents. See, e.g., Obergefell v. Hodges, 576 U. S. 644 (2015) (overruling Baker v. Nelson); Brown v. Board of Education, 347 U. S. 483 (1954) (overruling Plessy v. Ferguson); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) (overruling Adkins v. Children’s Hospital of D. C. and in effect Lochner v. New York).
But that history alone does not answer the critical question: When precisely should the Court overrule an erroneous constitutional precedent? The history of stare decisis in
