The concept of super-precedent

“Super-precedent” is an elusive concept that gained popularity in 2005 thanks to United States Senator Arlen Specter.

During the Senate confirmation hearings of then Chief Justice nominee John Roberts, the Senator, while questioning Chief Justice Roberts about his views on Roe v. Wade and Planned Parenthood v. Casey, referred to the opinion of Judge Micheal Lutting of the 4th Circuit Court of Appeals in Richmond Medical Center v. Gilmore. In that judgment, Judge Lutting opined that as per his understanding, the Supreme Court intended that its decision in Planned Parenthood v. Casey to be a decision of “super-stare decisis” with respect to a woman’s fundamental right to abortion. The Senator asked Chief Justice Roberts as to whether the decisions that followed Roe v. Wade “fall into the category of super-stare decisis designation”. Chief Justice Roberts deflected the question by stating that “the term hasn’t found its way into the Supreme Court”.

While the Senator went onto to state that he would leave the coining of such phrases like super-precedents to the Supreme Court, he did prod Chief Justice Roberts once more to ask whether Roe v. Wade was a “super-duper precedent” since it had not been overruled by thirty-eight subsequent decisions that had referred to it. Though the question was not directly answered by Chief Justice Roberts, he did clarify that Roe v. Wade was “settled as a precedent of the court entitled to respect under the principles of stare decisis.”

Meaning, nature and scope

The term “super-precedent” was coined way back in 1976 by Professors Richard A Posner and William M Landes in an article titled, Legal Precedent: A Theoretical and Empirical Analysis. According to the Professors, “a precedent so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place” would fall within the term “super-precedent”.

According to Professor Michael Sinclair, “to say a case is a super-precedent means it is judicially unshakeable, a precedential monument which may not be gainsaid, akin to having the statute-like force of vertical stare decisis horizontally.” Sinclair also states,

“A super-precedent stands for a fundamental pillar of social or legal structure. Other cases may be powerful, but not of that stature.”

Professor Micheal J Gerhardt, defines super precedents as:

“...the doctrinal, or decisional, foundations for subsequent lines of judicial decisions (often but not always in more than one area of constitutional law). Super precedents are those constitutional decisions in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time. Super precedents are deeply embedded into our law and lives through the subsequent activities of the other branches. Super precedents seep into the public consciousness, and become a fixture of the legal framework.

Super precedents are the constitutional decisions whose correctness is no longer a viable issue for courts to decide; it is no longer a matter on which courts will expend their limited resources...Thus, super precedents take on a special status in constitutional law as landmark opinions, so encrusted and deeply embedded in constitutional law that they have become practically immune to reconsideration and reversal.”

In his book, The Power of Precedent, Gerhardt describes three kinds of super precedents. The first kind consists of long-standing Supreme Court decisions establishing foundational institutional practices of the judiciary such as Marbury v. Madison (that established the doctrine of judicial review). The second set of super precedents are those that establish a “foundational doctrine” which refers to the “court’s and other public institutions’ persistent recognition of, and support for, enduring categories, frameworks, classes, and kinds of constitutional disputes” such as Mapp v. Ohio that recognized the Fourth Amendment’s guarantee against unreasonable search and seizures.

The third are “foundational decisions” that are “potentially controversial” but have (1) endured over time; (2) been repeatedly cited with approval by public authorities; (3) shaped the development of doctrine in one or more areas of constitutional law; (4) enjoyed, in one form or another, widespread social acquiesce; and (5) been widely recognized by the courts as firmly settled and not requiring the expenditure of scarce judicial resources to revisit. According to Gerhardt, Brown v. Board of Education (declaring racial segregation in schools unconstitutional) and Knox v. Lee (upholding the constitutionality of paper money) are illustrations of such cases.

However, Gerhardt does not share the same enthusiasm for Roe v. Wade as it has been openly condemned by a section of the American political class and their leaders and does not have “unambiguous support of all three branches” of government. This view was echoed by then Professor and now Supreme Court Justice Amy Coney Barrett who had in an article written in 2013 argued that Roe v. Wade and Planned Parenthood v. Casey are not super-precedents because of the repeated challenges to these decisions. According to Justice Barrett,

“Public support does not immunize these cases from overruling; it immunizes them from being challenged in the first place.”

Unlike the evasive answers given by Chief Justice Roberts during his confirmation hearings on the issue, on being questioned by Senate Amy Klobuchar, Justice Barrett in her Senate confirmation hearings clearly stated that Roe v. Wade was not a super-precedent. In fact, reports suggest that even before Justice Samuel Alito’s initial draft opinion overruling Roe v. Wade and Planned Parenthood v. Casey was leaked by Politico, in the Justices’ conference held in December 2021 after the oral hearings concluded in Dobbs v. Jackson Women’s Health Organization, Justice Barrett had joined Justice Clarence Thomas, Justice Neil Gorsuch and Justice Brett Kavanaugh in voting with Justice Samuel Alito to overrule both decisions. The latest reports suggest that Chief Justice Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to adopt a more moderate position on the issue. Therefore, both Roe v. Wade and Planned Parenthood v. Casey are in danger of losing their precedential status.

Application of super-precedent to Indian jurisprudence

Unlike the United States Supreme Court where all the judges of the Court collectively assemble to decide questions of law, the judges of the Supreme Court of India do not do so due to the sheer “volume of work demanding the attention of the Court.” In India, the Supreme Court sits in Divisions. The constitution and number of judges in each division is decided by the Chief Justice of India. (See Union of India v. Raghubir Singh).

Article 145 (1) of the Constitution of India, 1950 gives the power to the Supreme Court to frame rules, with the approval of the President of India, to regulate the practice and procedure of the Court, subject to any provisions made by Parliament. Sub-clause 2 clarifies that these rules “may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.” Sub-clause 3 states that a minimum of five judges will assemble to decide a substantial question of law as to the interpretation of the Constitution or a Presidential reference under Article 143. Mukharji J. in his opinion for the majority in AR Antulay v. Ravi Nayak held that,

“There is a hierarchy within the court itself here, where larger Benches overrule smaller Benches…This is the practice followed by this Court and now it is a crystallised rule of law.”

Therefore, a Constitution Bench of five judges could always be overruled by a larger Bench as in the case of ADM Jabalpur v. Shivkant Shukla being overruled by a nine-Judge Bench in Justice KS Puttaswamy (Retd) v. Union of India. As a result, super-precedent would have very limited application in India.

Recently though, a Division Bench of the Supreme Court in Shanti Fragrances v. Union of India requested the Chief Justice to constitute an appropriate Bench to examine the issue of larger benches overruling decisions of smaller benches. If this practice adopted in India is deviated from and a new rule of precedent emerges, perhaps super-precedent could be applied in an altered context. Decisions such as Kesavananda Bharati v. State of Kerala (that legitimatized the basic structure doctrine) and Puttaswamy (that upheld the fundamental right to privacy) could in that sense be considered super-precedents.

While the evolution of the concept of super-precedent is still at a nascent stage, the way in which it jurisprudentially developments in the United States could have a bearing on whether it could be adopted by different jurisdictions including India.

Dormaan Jamshid Dalal is a practicing Advocate at the Bombay High Court and the NCLT, Mumbai. He can be contacted on Twitter @DormaanD.