Judicial junk, the Court has long thought, is easier to scrap when the erroneous precedent cannot be fixed by Congress, as in constitutional cases.1 On the flip side, whenever a bad precedent can be corrected by Congress, stare decisis applies with “special force.”2 Last Term, in South Dakota v. Wayfair, Inc.,3 the Court tinkered with this thinking in overruling an outdated dormant commerce clause precedent. Dormant commerce clause decisions technically produce constitutional holdings, but Congress may override them at will.4 Under the usual logic of stare decisis, it should take special force to dislodge such precedents. But Wayfair applied the weakened stare decisis of constitutional cases, asserting that the Court must “address a false constitutional premise . . . . whether or not Congress can or will act.”5
Emerging from Wayfair is an odd and ominous development in stare decisis doctrine. Odd, because it turns on a formal classification instead of on Congress’s practical ability to fix the problem. Ominous, because the Court’s logic leads far past the dormant commerce clause. Wayfair grants only feeble stare decisis to precedents that set a “constitutional default rule,”6 meaning constitutional decisions that allow for legislative adjustment or override. This new stare decisis analysis makes other precedents setting constitutional default rules more vulnerable — including, perhaps, mainstays of criminal procedure like Miranda v. Arizona7 and Mapp v. Ohio.8
Since its 1967 decision in National Bellas Hess, Inc. v. Department of Revenue,9 the Court has held that, under the “dormant” or “negative” implication of the Commerce Clause,10 states may not compel remote sellers with no physical presence in the state to collect and remit sales taxes.11 In Quill Corp. v. North Dakota,12 the Court refused to overrule the “bright-line, physical-presence requirement” of Bellas Hess, leaning heavily on stare decisis.13 So the physical presence test remained the law of the land while the internet conquered the earth. Justice Kennedy had joined the Quill majority and Justice Scalia’s concurring opinion emphasizing stare decisis, but by 2015 he had second thoughts. Writing separately in Direct Marketing Ass’n v. Brohl,14 Justice Kennedy acknowledged that “[t]he Internet has caused far-reaching systemic and structural changes in the economy” and therefore “Quill now harms States to a degree far greater than could have been anticipated earlier.”15 He concluded with the wish that “[t]he legal system should find an appropriate case for this Court to reexamine Quill and Bellas Hess.”16
Seldom has a concurring opinion signed by a lone Justice prompted a state to officially declare an emergency. Yet in 2016, in response to Justice Kennedy’s overture, the South Dakota legislature passed a law, S.B. 106, “to provide for the collection of sales taxes from certain remote sellers . . . and to declare an emergency.”17 It required every remote seller to collect and remit sales tax if the seller’s business in South Dakota comprised either a “gross revenue” greater than $100,000 or at least 200 “separate transactions” within one calendar year.18 Significantly, the law did not apply retroactively.19 The “emergency” declaration was necessary to give the law immediate effect, for the purpose of “permitting the most expeditious possible review of the constitutionality of this law” by the U.S. Supreme Court.20 As Justice Alito put it, the “South Dakota law [was] obviously a test case.”21
Expeditiously, a group of remote sellers challenged the law. After being sued by South Dakota for refusing to register for the newly required sales tax license, Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc. moved for summary judgment in South Dakota circuit court on the grounds that S.B. 106 was unconstitutional under Quill and Bellas Hess — a point South Dakota conceded, indicating that it was seeking review by the U.S. Supreme Court to overturn Quill.22 Accordingly, the South Dakota circuit court granted the motion for summary judgment and South Dakota appealed to the state’s highest court.23 The South Dakota Supreme Court unanimously affirmed, recognizing that South Dakota’s “arguments on the merits” may be “persuasive” but “Quill remains the controlling precedent.”24
The U.S. Supreme Court vacated and remanded.25 Writing for the Court one last time, Justice Kennedy26 pilloried Quill’s physical presence rule as “arbitrary, formalistic,” “anachronistic,” and “unfair and unjust” to both states and brick-and-mortar retailers.27 After all, the rationale of Quill was that remote sellers lacked a sufficiently “substantial nexus” with the state to justify imposing a duty of tax collection.28 This was wrong even in the mail-order catalog days of 1967 and 1992, but “the Internet revolution has made [Quill’s] earlier error all the more egregious and harmful.”29 The rule deprived the states of billions of dollars, since they could not force remote sellers to collect the tax and consumers hardly ever paid it on their own.30 Quill “serve[d] as a judicially created tax shelter” for remote retailers who do a great deal of business online.31
Satisfied that Bellas Hess and Quill were wrongly decided, the Court then jumped the hurdle of stare decisis. The Quill Court had feared upsetting reliance interests.32 Wayfair shrugged off this concern, noting that “stare decisis accommodates only ‘legitimate reliance interest[s]’”; by contrast, reliance on the physical presence rule was largely due to consumers evading their use-tax obligations.33 Quill had also appealed to Congress’s ultimate authority over interstate commerce as a reason to abide by a precedent, even if wrongly decided.34 But Wayfair denied that Congress’s ability to change the law was a proper consideration:
While it can be conceded that Congress has the authority to change the physical presence rule, Congress cannot change the constitutional default rule. It is inconsistent with the Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation. Courts have acted as the front line of review in this limited sphere; and hence it is important that their principles be accurate and logical, whether or not Congress can or will act in response.35
Having dispensed with the physical presence rule, the Court remanded the case to the South Dakota courts to determine in the first instance “whether some other principle in the Court’s Commerce Clause doctrine might invalidate the Act.”36
Justices Thomas and Gorsuch each filed concurring opinions. Justice Thomas wistfully likened himself to Justice White — who voted for Bellas Hess but against Quill a quarter-century later — and confessed that he “should have joined [Justice White’s dissenting] opinion.”37 Justice Thomas added that the “Court’s entire negative Commerce Clause jurisprudence” is wrong and should be abandoned.38 Justice Gorsuch also wrote separately to express skepticism of the Court’s dormant commerce clause jurisprudence, raising “questions for another day” of whether the doctrine “can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause.”39
Chief Justice Roberts dissented.40 Surprisingly, the dissenting Justices “agree[d] that Bellas Hess was wrongly decided, for many of the reasons given by the Court.”41 The dispute between the majority and the dissent turned entirely on the principles and application of stare decisis. Chief Justice Roberts argued that whether or how to reverse Quill should be left to Congress, which “has the flexibility to address these questions in a wide variety of ways” and “can focus directly on current policy concerns rather than past legal mistakes.”42 He also pointed to the “baffling” burdens of compliance with the idiosyncratic tax codes of “[o]ver 10,000 jurisdictions,” particularly for small businesses, and doubted that new “software” — the majority’s proposed solution to this mess43 — would soon solve the problem.44
Chief Justice Roberts emphasized that a “heightened form of stare decisis”45 applies when “Congress . . . can, if it wishes, override this Court’s decisions with contrary legislation.”46 In Quill, the Chief Justice noted, the Court had taken to heart that “Congress may be better qualified” and “has the ultimate power to resolve” the question47 while Justice Scalia had “recogniz[ed] that stare decisis has ‘special force’ in the dormant Commerce Clause context due to Congress’s ‘final say over regulation of interstate commerce.’”48 Moreover, “[i]f stare decisis applied with special force in Quill, it should be an even greater impediment” afterward since Quill effectively “tossed [the ball] into Congress’s court.”49 Because the Court invited Congress to act and then “suddenly chang[ed] the ground rules, the Court may have waylaid Congress’s consideration of the issue.”50
In Wayfair, the Court applied the flimsier form of stare decisis to a precedent that could have been overruled by Congress. It did so in the context of a dormant commerce clause case, but Wayfair’s logic extends to all constitutional default rules — that is, constitutional decisions that Congress remains free to change. Not only does Wayfair deviate from the Court’s decades-old stare decisis analysis, it also imperils other precedents that set constitutional default rules.
The Court’s reasoning in Wayfair departs from its prior stare decisis analysis. In 1932, Justice Brandeis posited that stare decisis must bend “in cases involving the Federal Constitution, where correction through legislative action is practically impossible.”51 The Court has long since adopted his argument,52 as well as its corollary — that stare decisis commands “special force in the area of statutory interpretation” where “Congress remains free to alter what [the Court has] done.”53 Justice Brandeis’s logic demands that dormant commerce clause cases, where Congress is free to act, be granted the weightier stare decisis.54 The Court applied this reasoning in Quill, as Chief Justice Roberts underscored.55
Yet the Wayfair majority refused to consider Congress’s authority to legislate as a relevant factor for stare decisis.56 The Court even insisted that to do so “is inconsistent with the Court’s proper role,” since Quill embodied “a false constitutional premise of th[e] Court’s own creation.”57 This refusal breaks from the practical Brandeisian wisdom that has guided the Court’s treatment of precedent for the better part of a century. The point is not that stare decisis should have ultimately propped up Bellas Hess yet again, as Wayfair’s dissenting Justices maintained. After all, a realistic approach that is alert to each branch’s institutional capacities might have led to the conclusion that Congress was actually ill-equipped to overrule Quill. In this vein, the Court could have sensibly pointed out that Congress is unlikely to stick its neck out with a tax hike (or a look-alike) from which only the states would benefit.58 Indeed, South Dakota advanced such practical arguments in its brief.59 More generally, the Court might have discussed the limits of the states’ influence in the federal system as a reason not to wait for congressional intervention, a topic it has debated on other occasions.60 Or it could have argued that new facts on the ground — namely, the blast of e-commerce that hit like a comet after Quill — overpowered stare decisis of any force, special or plain.61 Because even statutory precedents may sometimes be overruled,62 the Court could have killed Quill without first planting its constitutional kiss of death.63
The Court resisted such arguments. Instead, Wayfair reasoned that Congress’s total ability to correct an erroneous decision counts for nothing when the Court gets the Constitution wrong. That such a theory sprouts from a case like Wayfair, which repudiated a “formalistic distinction,”64 is ironic. Wayfair’s stare decisis analysis resorts to the formalism of making constitutional a “magic” word65 rather than asking whether Congress can step in.
Moreover, the Court’s new thinking on stare decisis threatens other constitutional default rules. Wayfair now stands for the proposition that a “constitutional default rule” — a term the Court apparently lifted from South Dakota’s reply brief on the merits66 — gets only weakened stare decisis. To appreciate why this holding matters, it is worth exploring the concept and scope of constitutional default rules. Contract theory describes default rules as legal rules that the parties may “contract around.”67 Although “constitutional default rule” could be read broadly to include a variety of actors and contracting mechanisms,68 the Court’s use of the term for purposes of stare decisis may be narrowly defined as judicial precedents of constitutional law that “are ultimately subject to congressional control.”69 The dormant commerce clause is a paradigmatic constitutional default rule because what the Court does today Congress may undo tomorrow. Justice Scalia declared this fact “[t]he clearest sign that the negative Commerce Clause is a judicial fraud,” for “[h]ow could congressional consent lift a constitutional prohibition?”70 But that’s what a constitutional default rule is. The Court has allowed Congress to overturn its dormant commerce clause cases since 1891.71
Dormant commerce clause cases are not the only constitutional default rules. Professor Laurence Tribe’s treatise identifies two others.72 And in a groundbreaking article, Professor Henry Monaghan revealed “a substructure of substantive, procedural, and remedial rules” forming “a constitutional common law subject to amendment, modification, or even reversal by Congress.”73 What follows is a list of six lines of cases beyond the dormant commerce clause that may be fairly described as constitutional default rules. The first two are drawn from Tribe’s treatise while the next four are found in Monaghan’s article:
(1) State Taxation of Federal Instrumentalities: States may not tax instrumentalities of the federal government74 — unless Congress consents.75 (2) Article I, Section 10 Cases: Article I, Section 10 provides that certain prohibitions on the states may be waived by Congress.76 The Court has taken note of this when considering whether to overrule, for instance, an Import-Export Clause precedent.77 (3) Bivens Cases: In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,78 the Court held that a violation of the Fourth Amendment gives rise to a right to sue for damages.79 But the Court has also held that “[s]uch a cause of action may be defeated . . . when . . . Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.”80 (4) Miranda Cases: The Miranda Court famously “encourage[d]” Congress and the states to explore alternative “procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.”81 (5) The Police Lineup Case: In United States v. Wade,82 the Court created an exclusionary rule for evidence obtained from a police lineup in violation of the Sixth Amendment right to counsel but acknowledged that it could be replaced by “[l]egislative or other regulations . . . which eliminate the risks of abuse.”83 (6) The Exclusionary Rule Cases: Mapp v. Ohio made the Fourth Amendment “exclusionary rule” binding on the states,84 yet Congress is thought to have the power to replace it.85
All of the above are arguably constitutional default rules set by the Court that remain, to one degree or another, open to congressional revision. The list could be longer or shorter, depending on which default rules the Court will view as constitutional86 and on how it will answer open questions about congressional authority over certain constitutional provisions.87 But the takeaway is clear: weaker stare decisis for constitutional default rules. Pre-Wayfair, one would have thought that stare decisis applies with special force to such precedents, given congressional power to set them straight. Not anymore. Why? Because it is improper to “ask Congress to address a false constitutional premise of th[e] Court’s own creation.”88 The Latin for Wayfair’s doctrine is not stare decisis, which should reflect a realistic, working relationship between the legislative and judicial branches. It is mea culpa.
In its zeal to update the Constitution for “the Cyber Age,”89 the Court deleted Congress from stare decisis doctrine in constitutional cases. The Court had better options. It could have left Quill on Congress’s doorstep, as the dissent argued. Or it could have justified overruling Quill notwithstanding the special force of stare decisis. Instead, the Court reasoned that it doesn’t matter whether Congress is willing and able to do the job: a constitutional mess calls for a judicial clean-up crew. For constitutional default rules — a category of decisions embracing the dormant commerce clause and sweeping far beyond — Wayfair’s new theory of stare decisis makes the Court’s precedents less sticky and Congress less relevant.