Overruled by Implication

What if an apparently relevant precedent has been eroded by one or more later decisions? One might expect that, in the event of irreconcilable conflict, the more recent precedent would control. Yet, in Rodriguez de Quijas v. Shearson/American Express, Inc., the Court stated: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” This statement is troublesome in that it has caused lower courts to follow Supreme Court precedent that has not yet been expressly overruled, but has been overruled by implication. This Article shows that this statement need not be followed—and indeed, if lower courts are to faithfully comply with their duties under vertical stare decisis, it must not be followed. Part I of this Article begins with a discussion of the Supreme Court’s longstanding practice of overruling by implication, and it provides as an example the Court’s implicit overruling of its holding in Almendarez-Torres v. United States. Part II also shows that, notwithstanding the overruling of Almendarez-Torres, lower courts continue to follow that precedent, largely because of Rodriquez de Quijas. Part III of this Article consists of a criticism of the Court’s statement in Rodriguez de Quijas. Part III shows that this statement is dicta and therefore need not be followed by any lower court. Part III further shows that even if regarded as somehow binding on lower courts, the Court’s statement in Rodriguez de Quijas has itself been overruled by implication, thereby obligating the lower courts to disregard contrary authority. Finally, Part III shows that the Court’s statement in Rodriguez de Quijas should be expressly overruled, both because it fails to survive the Court’s own test for assessing the viability of precedent and because an express overruling would more clearly indicate that the Court’s statement in Rodriguez de Quijas cannot be read as impeding the lower courts’ ability to resolve precedential conflicts. This Article concludes that, regardless of whether the Court expressly overrules Rodriguez de Quijas, lower courts must disregard the Court’s statement in that case and consider themselves free to recognize when cases, such as Almendarez-Torres, have been overruled by implication