Supreme Court Review: Nothing Overruled, But 60 Abrogations

July 24, 2014

The Supreme Court in WashingtonDuring the United States Supreme Court’s 2013-14 Term, the Court did not overrule any decisions, though some justices would have done so. And the court abrogated 60 decisions.

Say what?

It’s a question that would sound more profound in legal Latin. Here’s the answer, in plain English, along with an explanation of how these events are treated in KeyCite, a citator service for which Thomson Reuters attorney editors make flags — kind of like Betsy Ross, except our flags are solid red or solid yellow (no stripes and no stars on the flags themselves, though KeyCite may have stars for depth of discussion of the cited case).

When the Supreme Court decides that one of its own decisions is no longer good law, it overrules the decision. These opportunities to reconsider precedent arise when the Court is reviewing lower court decisions, usually by writ of certiorari. One important factor in deciding whether to grant certiorari is whether there’s a disagreement in the lower courts — it’s a “circuit split,” if the federal Courts of Appeals have reached different results.

When the Court resolves a split, the cases on the wrong side of the split are no longer good law. If the case at bar is one of those cases, it will be reversed (and will get a red flag on KeyCite), not overruled (which would also be a red-flag event on KeyCite). Others cases on the wrong side of the split are merely cited by the Court; they’re not actually before the Court. So they aren’t reversed. And the Court won’t actually say they’ve been overruled or abrogated. But clearly, they’re no longer good law. So an attorney-editor makes an “abrogated” treatment for KeyCite. Those cases get a red flag, and the synopsis and relevant headnote for the Supreme Court decision resolving the split will cite the abrogated cases.

Reversed. Overruled. Abrogated. They’re all red-flag treatments. So, same result, but a different way of getting there.