What if SCOTUS misses a precedent?

Probably a dumb question but here it is anyway. Say a case comes before the Supreme Court. Say there’s some old dusty one-sentence precedent from 100 years ago that as the case was wending its way through the court system everybody managed to miss. Say SCOTUS decides the case in a way that directly conflicts with that precedent, all without finding this precedent or mentioning it in the decision in any way. Then after the fact someone realizes oh hey, wait a minute, SCOTUS already decided this! What happens next? What’s the status of the earlier decision?

If the later decision directly contradicts the earlier one, then the later one is good law and the earlier one isn’t anymore.

This was my gut reaction but with no mention having been made of the earlier decision in my hypothetical I wondered if something else might come into play.

Told you it was a stupid question.

There are two issues here.

Fundamentally, a court’s decision adjudicates the rights as between 2 or more parties. From that point of view, both decisions would stand.

From the point of view of precedent, there would be a strong argument that the later decision controlled even though it was not explicitly overruled.

Finally, it is possible that one of the parties to the later decision might apply for a re-hearing. Which would be unlikely to accomplish anything, but you never know.

It’s pretty rare for cases to cover exactly the same ground as a previous case, so can you give an example of what you’re thinking about? Also, keep in mind that the party arguing against the decision that would change the precedent is almost certainly going to bring it up during the course of the case. So you have at least two parties interested in scouring the case books, not just the Supremes and their staffs. Even the party that does want to change the precedent is going to be motivated to bring up a reason for the change, since they would be stupid to assume that the other side and the Supremes are just going to be sloppy.

But yeah, in a hypothetical case where the exact same issue was addressed and a new precedent was enacted, the old one would no longer have standing. I’m sure you could find some lawyer somewhere, though, who could find some, possibly obscure, case where it would still apply. Legal issues aren’t like math where there is generally just one answer.

The chances of this happening are exactly Nil and None. Get real. :rolleyes:

From what I’ve read, the law has a long history of bringing up hypothetical cases that have just about no chance of happening - the ‘fertile octagenarian’ is a pretty good one. :smiley:

To make it more realistic, let’s suppose that it’s an issue of state law and that it’s before the highest court in a state that has no intermediate appeals court and lacks certiorari jurisdiction.

I’m sorry, I hadn’t realized that the legal profession had obtained absolute perfection. I do understand that the likelihood of this happening is extremely low and I even think I said in the OP that it was a dumb question. Not sure why you felt the need for the snotty eyeroll but hey, maybe you’re still hung over from some of that New Year’s cheer.

Finally, remember that, while SCOTUS generally rules in accord with precedent, how they rule – what a majority agrees is the law – is the law. In the event that their predecessors said something pertinent to the case before them now back in 1829, and neither the staffs of nine justices, counsel for appellant, counsel for respondent, and amici curiae ranging from the Friends of Ann Coulter to the Hermaphrodites Rights League have all missed it – well, then, too bad. What’s the law now is what they decide now.

Most often, however, a precedent does get noticed but – either brought up and a ruling issued in conformance with (most common), ignored by all parties (vanishingly rare), overturned (rare but many historic cases turn on it), or distinguished, where the court draws a distinction between the circumstances in the case giving rise to the previous precedent,and the differing circumstances that lead them to rule differently in the case up for consideration. I.e., a hypothetical example: “in Signorino v. Adams, we found that an illustration commissioned to accompany a prose work and integrally connected to that work was included in the copyrighted material to which the author or other copyright holder of the prose work holds title. However, in the instant case, we have art with intrinsic commercial value in and of itself, not depending on the prose it accompanies for its significance. Further, the artwork in question was done freelance and offered as potential illustration for the prose. Nothing in any of the contracts or other evidence presented at trial suggests that there was a meeting of the minds that complete rights to the artwork were being vended to appellant. The production and sale of specified rights to an independent artwork must be distinguished from the commissioning of an illustration whose sole purpose is to illuminate the accompanying prose. We therefore find in favor of respondent artist, without, however, overturning the finding in Signorino relative to commissioned illustrations.”

Interesting question, but…each Justice has four law clerks (except for the Chief Justice, who has five) who are the absolute cream of the crop of the entire nation for researching and writing. Think of our fine legal crew on the SDMB in GQ and multiply that pressure for exhaustive treatment of any given issue by a factor of about 9000. The chances of every single law clerk missing even a secondary precedent from a 1907 trial court in Kalamazoo are precisely nil.

In close, nothing better than a federal law clerk for legal research, or even a former federal law clerk. They are also well known for their physical beauty, charm, and easy grace in social situations. Hail fellows well met, each and every one.

Moderator Warning

Otto, you should know quite well that this kind of remark is not appropriate in this forum. You were OK until the last sentence.

DSYoungEsq, I am not warning you here but I think the eyeroll was quite unnecessary. Otto acknowledged the likelihood was low.

General Questions Moderator

The basic rule is:


If possible, a lower court would try to reconcile the two cases. If the high court considered the issue, it would decide whether the new case overruled the old one.

Ok, sorry for the rolled eyes. I wasn’t rolling them at you, I was rolling them at the idea, but I forget people tend to equate the two when the idea is their own (I know I do), so my apologies. :smack:

However, as to the concept of “missing” a precedent, I thought I recalled that you had some legal training in your past. As such, you would know that there are a relatively limited amount of Supreme Court of the United States cases (only 544 volumes, each modern volume holding somewhere around 25 - 30 cases). Each case, from the beginning, is reported in a bound volume, which is owned by most every law public law library, and many private ones (especially for firms that do appellate work of any sort). Further, every case is indexed by a number of different methods, including the more famous “digests” which are published by the major law publishing companies. Then, of course, there is the even more famous Shepard’s, which provides all citations by a case and to a case (so famous they have their own verb, to “shepardize” a case). On top of which, there are numerous casebooks, hornbooks, outlines, tomes, and what have you, addressing virtually every point of constitutional and federal law, all of which are extensively researched, and which often manage to cite in their pages or endnotes every pertinent Supreme Court case in existence on the subject, and quite a few which aren’t really on the subject.

So even back when I was a law student in the early 80s, the chance of missing the existence of a prior Supreme Court case was nil. Now, with the whole thing computerized, with the ability to run searches for key words within the cases? Totally impossible.

Which shouldn’t be a shock because I am willing to bet my dollars against your donuts (please make them tasty donuts) that even back in the Nineteenth Century, the chance of missing a prior precedent was pretty close to nil. That’s WHY the digests and compendiums exist. And, as someone else has noted, you have to keep in mind that the cases are scoured not just by the parties, but by the law clerks for the justices, by the lawyers for a whole slew of potential amici, etc. Just isn’t gonna happen.

But let’s say for kicks and giggles that you are working on a case that presents an issue that the Supremes haven’t looked at in over 100 years. And on this obscure point, you have two prior cases: one from the 1840s which said X, and one from the 1880s which said Y, where X and Y are truly mutually exclusive holdings. And the Court in reaching Y didn’t know about X at all. Which case is binding precedent?

The answer should be obvious: neither. Indeed, this would be true if both cases happened last year. Stare decisis is not some absolute rule of law that is invariate in its application. It’s a convention used by our legal system to avoid chaos, a tool, and nothing more. If this situation happened, the Court would not be obligated to use either decision; it could simply fashion a whole new result if it wanted. It could use the older rule, or it could use the newer rule. And whatever result it chose would not be retroactively applicable to the older cases at all.

So let’s go back then to the mechanics of your original question. If somehow there was a decision of the Supreme Court that issued that did not address some prior case of importance to the decision, the effect would be nil on the prior case. Lower courts, upon finding out about the conflict would try to reconcile the conflict through examination of the facts of each case and the actual holdings (almost never are the facts the “same” and the holdings diametrically opposed). And if you stumbled upon the missing case within 25 days of the issuance of the Supreme Court’s decision, you could always file a Petition for Rehearing (Rules of the Supreme Court of the United States, Rule 44), stating that you and every other idiot dealing with the case had totally screwed up by failing to notice a case on point from the Supreme Court. In which case, I hope you like the taste of egg. :stuck_out_tongue:

IANAL, but it sounded from the OP that Otto was not talking about missing SC decisions, but perhaps missing lower court rulings? Which, it seems, could more realistically be missed.

The Supreme Court isn’t bound in any sense by lower court opinions. Missing a lower court opinion wouldn’t be a problem in the sense proposed by the OP.

And the OP said:

(Emphasis added.)

As I mentioned in my last post, the basic approach is that we assume the court didn’t miss a case and try to reconcile old and new.

Do you know of a single example at any point in the Court’s history of such a thing happening?

I think the basic approach doesn’t exist, because it hasn’t happened. :stuck_out_tongue:

That’s just what I thought. The Supreme Court doesn’t always explicitly overrule its prior decisions anyway, even though that’s the practical effect of the later decision. In a situation like that posited by the OP, it’d be a distinction without a difference. The party which discovered the long-lost precedent (very unlikely, for the reasons already mentioned) could and should ask for a re-hearing, but I’d expect the Supremes would give a thumbs-down 99.99% of the time.

As the saying goes, the Supremes are not final because they’re (necessarily) right; they’re right because they’re final.

Has the court ever said, “oops, we missed a case, the subsequent one is overrruled?” Not that I’m aware of.

But there are cases on overruling by implication, like the one I cited above, where they held that they had indeed overruled a case by implication. They’d be unlikely to follow a long-forgotten precedent anyway because of how they treat stare decisis, anyway.

Agostino, id.

I’ve definitely seen cases where they don’t talk about a line of cases that seems to contradict their holding. That doesn’t necessarily mean that they missed them accidentally, though. :wink:

Cases coming before the U.S. Supreme Court receive an extraordinary amount of attention. In addition to the clerks and Justices, you have a team of lawyers for each party, who will typically spend an enormous amount of time looking for any case that they might cite to their advantage. And frequently, there will be amicus briefs filed by non-parties with their own lawyers who conduct their own research. And on top of that, the whole case will have been briefed and argued at least once before, in a federal court of appeals or a state supreme court.

So, as others have noted, the likelihood of a relevant precedent being totally overlooked in a U.S. Supreme Court proceeding is very, very small. Of course, the question of whether the Court correctly interprets or applies the precedent is an entirely different matter (and often hotly debated).