Old Rulings, New Reasons

Jack Boeglin* October, 2026

When the Supreme Court does away with a longstanding legal principle, what should become of the hundreds, if not thousands, of precedents across the judicial system that rely upon it? Does some residual precedential value continue to attach to a decision even after its reasoning has been rejected? Or should it be overturned unless it can be upheld on a new, independently persuasive legal basis?

These are the questions courts must ask when deciding whether to “reharmonize” precedent. A court reharmonizes a past decision by supporting it on alternative grounds that better fit with changing legal or factual understandings.

The Roberts Court has, in its own words, taken a “dim view” of reharmonizing. It should brighten its outlook. Reharmonizing promotes the values underlying stare decisis. It respects the norms of common law doctrinal development. It accounts for the reality of judicial fallibility. And it clarifies whether and why undermined precedent remains good law.

But reharmonizing poses dangers as well. It can distort legal doctrine by encouraging courts to accept a new rationale for a past decision that does not represent the “best” legal interpretation as a matter of first principles. This Article offers a framework for when courts should (and should not) reharmonize. A precedent should be reharmonized when: (1) its original reasoning is no longer tenable; (2) a plausible alternative legal basis exists on which to preserve it; and (3) the benefits of reharmonizing outweigh the costs to doctrinal integrity.

This framework clarifies the precedential doctrines employed by the federal courts, including the “special justification” and “prior panel precedent” rules. What’s more, it could help clean up the doctrinal messes created by the demise of Chevron, the curtailing of substantive due process, and the hollowing out of Bivens.

Introduction

We live in an age of overruling.¹ In recent Terms, the Supreme Court has jettisoned precedent on hot-button issues like abortion rights, affirmative action, and religious exercise, as well as in less headline-grabbing areas like administrative law and criminal procedure.² Court watchers have often noted, and often criticized, the Court’s view that stare decisis does not compel it to stand by its past decisions.³

This furor over the Court’s readiness to discard specific unwanted precedents can sometimes overshadow an equally important trend: its willingness to rethink entire lines of doctrine, interpretive methodologies, and (seeming) constitutional settlements. Loper Bright Enterprises v. Raimondo spelled the end of Chevron deference, an administrative law doctrine cited in nearly twenty thousand federal cases.⁴ And Loper Bright was no anomaly. The justices have cast doubt on everything from the means-ends balancing tests ubiquitous in constitutional adjudication⁵ to the very concept of substantive due process.⁶ These threats to doctrinal stability are the natural (if not inevitable) consequence of the Court’s hard formalist turn and show no signs of abating.

These are the questions courts must ask themselves when deciding whether to reharmonize precedent.⁷ As I define the term, a court reharmonizes one of its past decisions by supporting its holding or rule of decision on alternative grounds that better fit with intervening doctrinal developments or changing judicial attitudes.

An example at the outset might help: In Crawford v. Washington, the Supreme Court rejected the test for construing the Confrontation Clause set out in Ohio v. Roberts.⁸ Under Roberts, a criminal defendant was not entitled to confront unavailable witnesses if their statements were supported by adequate “indicia of reliability.”⁹ Under Crawford, a defendant is now entitled to confront witnesses making “testimonial statements” against him regardless of their apparent reliability.¹⁰ But in junking Roberts, the Crawford Court did not overrule the entirety of its prior Confrontation Clause case law. Instead, in a remarkable passage, it reharmonized more than a dozen such decisions, individually demonstrating how each would have come out the same way under the Crawford rule—“an empirically accurate explanation of the results our cases have reached.”¹¹

Although reharmonizing has long been part of the standard judicial repertoire, the practice remains undertheorized and underappreciated.¹² This Article offers the most comprehensive examination of reharmonizing in the academic literature to date, explaining how it works, documenting its historical use, interrogating the normative case for and against it, and offering a framework for when courts should (and should not) reharmonize.

Start with why courts might want to reharmonize decisions with defunct reasoning. First and foremost, doing so promotes the values underlying stare decisis.¹³ Many of the justifications for following precedent—such as promoting reliance interests, perceived judicial legitimacy, legal impartiality, and decisionmaking efficiency—remain in play even when a decision’s original reasoning no longer does. Those justifications turn on real-world reactions to judicial rulings. And often, there is greater awareness of, and reliance on, a case’s “low-level” aspects (like its concrete holding) than its “high-level” ones (like the precise doctrinal machinations that led to that holding). Likewise, the blow to perceived legitimacy that can attend overruling a case often stems from disturbing its result, not its rationale. Much of the benefit of stare decisis might thus be retained by propping up old rulings with new reasons.

Reharmonizing also respects the common law process through which courts—and particularly Article III courts bound by the “Case or Controversy” requirement—are ordinarily expected to construct legal doctrine.¹⁴ A court does not promulgate legal rules as if it were a legislature adopting a statute. Instead, doctrinal frameworks are supposed to emerge from, and remain grounded in, the need to resolve particular legal disputes. By reharmonizing cases decided under an earlier state of the law, courts act as participants in a project of iterative doctrinal evolution, not as minilegislatures at liberty to revoke and replace legal rules at will.

Another virtue of reharmonizing is that it accounts for judicial fallibility.¹⁵ Not all changes to legal doctrine—even those embarked upon with great confidence and good intentions—turn out to be for the best. When a case presents a close call under a new legal test, but is clearly governed by precedent decided under a formally defunct (but possibly superior) set of legal principles, reharmonizing can increase the chance of a court reaching what we might think of as the platonic “right” answer.

A final benefit of reharmonizing is that it clarifies not just whether, but why, a decision whose original reasoning has been discredited is still good law.¹⁶ Absent such an explanation, future courts are left without guidance when new fact patterns arise that bear some relationship to that precedent but are not on all fours with it. Reharmonizing solves that problem by fitting an undermined decision within the rubric of some still-valid set of legal principles.

This Article makes the case that these benefits warrant courts putting a thumb on the scale in favor of reharmonizing precedent. To be clear, I am not advocating for courts to lightly discard the reasoning of past decisions—only that, once a court has done so, it should then engage in a healthy degree of motivated reasoning when deciding whether to accept an alternative legal basis for those decisions.

Of course, putting a thumb on the scale in favor of reharmonizing won’t always suffice to save undermined precedent. A change in doctrine or methodology will sometimes mean that decisions reached under the ancien régime were necessarily incorrect. For instance, some justices reject the idea that the Eighth Amendment’s Cruel and Unusual Punishments Clause incorporates “evolving standards of decency.”¹⁷ If the Court were to strip evolving standards from its Eighth Amendment jurisprudence, there (unfortunately, in my view) might be no plausible basis on which to reharmonize its decisions prohibiting mandatory life sentences for minors.¹⁸

Nor will putting a thumb on the scale always be necessary to save undermined precedent. Some originalist scholars believe that many First Amendment cases originally decided using the “tiers of scrutiny” would come out the same way under the “history and tradition” approach in vogue with the Court’s conservative wing.¹⁹ In McIntyre v. Ohio Elections Commission, for example, the majority reasoned that an Ohio state law prohibiting anonymous campaign literature flunked strict scrutiny.²⁰ Justice Thomas’s concurrence got to the same place by looking to the Founding-era tradition of anonymous political writings, including celebrated works like the Federalist Papers.²¹

But a thumb on the scale could prove decisive when it is unclear whether an old ruling should survive on new reasoning. On the way to eliminating the constitutional right to an abortion, the Court in Dobbs v. Jackson Women’s Health Organization sharply curtailed substantive due process doctrine. If the Due Process Clause secures any substantive rights at all, the Court decreed, it is only those fundamental rights “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”²² Does the right to enter a same-sex marriage recognized in Obergefell v. Hodges qualify?²³ How about the right to obtain contraception recognized in Griswold v. Connecticut?²⁴

Without putting a thumb on the scale in favor of reharmonizing, the answer to those questions would likely be “no.”²⁵ Yet the Court in Dobbs insisted that it did not “cast doubt” on those precedents.²⁶ Why not? Perhaps because, with a degree of motivated reasoning, those decisions can be squared with Dobbs’s restrictive approach to substantive due process after all.²⁷ Or maybe because those decisions can instead be justified on an alternative legal basis, such as that they both proscribe unlawful discrimination against a protected class in violation of the Equal Protection Clause.²⁸ The thumb-on-the-scale approach suggests that “maybe” is often all that should be needed to reharmonize decisions whose status as good law has been (or may soon be) called into question by the Supreme Court’s shifting interpretive and ideological commitments.

Unfortunately, the Roberts Court has expressed little interest in reharmonizing precedent. In Janus v. American Federation of State, County, and Municipal Employees, Council 31,²⁹ Justice Alito’s majority opinion looked askance at efforts to supply a new rationale for Abood v. Detroit Board of Education.³⁰ As Justice Alito observed, the Court has recently “taken a dim view of similar attempts to recast problematic” precedents with new reasoning.³¹ And in Citizens United v. Federal Election Commission, Chief Justice Roberts offered perhaps the most damning judicial assessment of reharmonizing to date, declaring stare decisis “a doctrine of preservation, not transformation,” such that there is “no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.”³²

The Roberts Court should brighten its outlook. Reharmonizing is no upstart jurisprudential innovation; it is a mainstay of judicial good practice with a respectable historical pedigree. If nothing else, the Court should cease ignoring the stabilizing effect that reharmonizing could have on its legitimacy as it continues to wage a formalist revolution against its own case law.

This Article proceeds as follows. Part I defines precedential reharmonization, documents how it works using historical examples, and explains how it differs from other means of altering precedent, such as overruling, confining, narrowing, or extending it.

Part II makes the case for putting a thumb on the scale in favor of reharmonizing undermined precedent. It also addresses likely constitutional and pragmatic objections to doing so. Ultimately, many of those objections reduce to an attack on the logic of stare decisis itself and fail to discredit the thumb-on-the-scale approach for much the same reason that they fail to discredit precedential reasoning more broadly. Any remaining objections offer reasons only to reharmonize responsibly, not to shy away from the practice altogether.

Part III puts the pieces together. Precedent should be reharmonized when (1) its original reasoning is no longer tenable; (2) a plausible alternative legal basis exists on which to uphold it; and (3) the benefits of reharmonizing outweigh the costs to doctrinal integrity. While each of these steps invites a degree of subjective judgment,³³ this Part offers guidance on how courts can make principled decisions on how to exercise their discretion.

Part IV shows how the framework set out in Part III could help clarify the precedential doctrines employed by the federal courts, including the “special justification” and “prior panel precedent” rules. To illustrate the framework’s potential, Part IV applies the framework to the real-world jurisprudential puzzles posed by the demise of Chevron deference, the possible end of substantive due process, and the hollowing out of Bivens doctrine.

I. Reharmonizing Precedent

This Part offers an overview of reharmonizing: what it is, why it is a viable jurisprudential technique, and how it differs from other means of altering precedent.

A. The Basics

To “reharmonize” a precedent means to preserve its holding or rule of decision by supporting it on an alternative legal basis that better fits with intervening doctrinal developments or changing judicial attitudes. This definition excludes minor tweaks and clarifications to precedent. Instead, reharmonizing alters a decision’s essential legal reasoning.³⁴ Precedent is thus typically reharmonized only following an avulsive change to an area of law.³⁵ It is rarely called for when a court incrementally revises doctrine—revisions that will, after all, generally account for existing precedent.³⁶

Despite its historical provenance,³⁷ the practice of propping up old rulings with new reasoning has taken on something of a bad rap.³⁸ This appears to be a case of guilt by association: Courts frequently reharmonize precedent in the very case that repudiates its reasoning. Adding insult to injury, such courts often profess fealty to stare decisis by following the bottom-line results of prior cases while simultaneously gutting their basic logical and legal premises.

Those were the basic terms of the jurisprudential debate in Crawford.³⁹ Despite rejecting the reliability-focused Roberts test,⁴⁰ Justice Scalia’s majority opinion conspicuously never included the word “overrule,” as he took pains to reharmonize nearly all of the Court’s prior Confrontation Clause cases (Roberts included).⁴¹ By contrast, Chief Justice Rehnquist’s concurrence in the judgment in Crawford did not mince words. Its opening sentence reads: “I dissent from the Court’s decision to overrule Ohio v. Roberts.”⁴² But the Chief Justice’s irritation was clearly directed at Justice Scalia’s perceived refusal to own up to overruling Roberts, not his effort to reharmonize the Court’s Confrontation Clause case law with Crawford ’s “testimonial statements” test.

In any event, Chief Justice Rehnquist perhaps should have been more measured in his displeasure in Crawford. He pulled a very similar maneuver himself years earlier in Illinois v. Gates.⁴³ Gates concerned the constitutional standard for determining when a tip by an informant provides probable cause for a warrant.⁴⁴ Prior to Gates, the federal courts applied the two-pronged test established in Aguilar v. Texas⁴⁵ and Spinelli v. United States.⁴⁶ Under the “Aguilar-Spinelli” test, an informant tip provided probable cause only if it (1) revealed the informant’s “basis of knowledge” and (2) established the “veracity” or “reliability” of his claims.⁴⁷ In Gates, the Court “abandon[ed]” the Aguilar-Spinelli test.⁴⁸ While acknowledging the importance of an informant’s knowledge and reliability, Chief Justice Rehnquist rejected the idea that both must be independently demonstrated in each case. Instead, probable cause is to be assessed under the “totality-of-the-circumstances.”⁴⁹ In effecting this doctrinal shift, Chief Justice Rehnquist reharmonized Aguilar, explaining that the decision continues to serve an important doctrinal purpose by “illustrat[ing] the limits beyond which a magistrate may not venture in issuing a warrant” under the totality of the circumstances.⁵⁰

Like Justice Scalia’s opinion in Crawford, Chief Justice Rehnquist’s opinion in Gates studiously avoided the word “overrule.” Justice White’s concurrence in the judgment displayed no such hesitation: “[I]t is not at all necessary to overrule Aguilar-Spinelli in order to reverse the judgment below.”⁵¹ But like Chief Justice Rehnquist in Crawford, Justice White took no apparent issue with the Gates majority’s decision to reharmonize the outcome in Aguilar.

Once reharmonized, precedent is no longer understood in terms of its original reasoning. Instead, its meaning will turn on the mechanics of the new legal regime with which it has been reharmonized.⁵² For instance, in the pre-Crawford case Lee v. Illinois, the Court found a Confrontation Clause violation when the prosecution introduced the incriminating confession of a codefendant.⁵³ Under the then-reigning Roberts test, the Lee Court reasoned that the “presumptive” inadmissibility of that confession had not been rebutted by a sufficient showing of reliability.⁵⁴ Post-Crawford, courts and litigants continue to cite Lee for the proposition that an incriminating, unconfronted statement by a codefendant violates the Confrontation Clause.⁵⁵ But as a doctrinal matter, that proposition no longer flows from the unreliability of a codefendant’s statements, but rather from the fact that such statements are generally “testimonial” within the meaning of Crawford itself.

As Crawford and Gates illustrate, courts often face a choice as to when to reharmonize precedent. In Crawford, the Court opted to assess all at once which of its Confrontation Clause cases should be preserved; in Gates, the Court reassessed some (but not all) of its cases concerning informant tips.⁵⁶

There are certainly virtues of the upfront approach—most obviously, it makes clear which of a court’s precedents are still good law. But there are also potential drawbacks. A court deciding whether to reharmonize all of its old rulings at once might make mistakes, wrongly concluding that a precedent should (or should not) be preserved.⁵⁷ Furthermore, when a doctrinal shift casts doubt on more than a handful of precedents, it might be impractical to settle the fate of all of them in a single go. When to reharmonize is thus a fundamentally pragmatic question, turning on considerations like the scale of decisions at issue, the obviousness with which they survive on a new legal basis, and the likelihood that the legal issues resolved in undermined precedent will be relitigated in the future.⁵⁸

B. Mechanics

To better understand how reharmonizing works, it is helpful to distinguish between three aspects of legal decisions: (1) holdings, (2) rules, and (3) rationales. Because the terminology used to describe judicial rulings is notoriously imprecise, I offer some working definitions below, which I illustrate using Chevron v. Natural Resources Defense Council.⁵⁹

By “holding,” I mean the concrete legal proposition(s) resolved in a case.⁶⁰ The “holding” in Chevron was that an Environmental Protection Agency (EPA) regulation interpreting the term “stationary source” in the Clean Air Act to refer to an entire industrial plant (as opposed to a piece of equipment therein) was a “permissible” reading of the statute.⁶¹

By “rule,” I mean the legal test(s) used to arrive at the holding.⁶² Rules can be simple (e.g., a bill of attainder imposing punishment without trial is per se unconstitutional) or elaborate (e.g., to apply the tiers of scrutiny, first determine the applicable tier, then assess the nature of the government’s interest, and finally gauge the level of fit between that interest and the challenged government action). Chevron’s rule, overturned in Loper Bright, was that courts should defer to an agency’s reasonable resolution of ambiguity in a statute the agency administers.⁶³

Finally, by “rationale,” I mean the justifications offered for adopting a particular rule.⁶⁴ The precise rationale underlying Chevron’s rule was often disputed, but the “most common” view was that (unless it said otherwise) Congress should be assumed to have implicitly intended to delegate to agencies the authority to resolve statutory ambiguities.⁶⁵

In offering this holding-rule-rationale typology, I do not mean to suggest that holdings, rules, and rationales can or should be hermetically sealed off from one another.⁶⁶ My point is simply that a legal decision, however precisely its constituent elements are parsed, can be analytically separated into high-level (i.e., more abstract) features like its rationale, and low-level (i.e., more concrete) features like its holding.⁶⁷ And critically, invalidating a decision’s high-level aspects does not necessarily invalidate its low-level ones.

Most obviously, a wide variety of rules might lead to the same holding. Assume that the EPA’s interpretation of “stationary source” in Chevron was not just permissible, but also the “best” reading of the Clean Air Act. Chevron’s holding would then have followed from either the rule the Court actually applied in that case (defer to the EPA) or the one that now applies post-Loper Bright (don’t defer). The Crawford and Gates examples discussed above illustrate the same point: Holdings reached under one rule may naturally flow from others as well.⁶⁸

While perhaps less intuitive, multiple rationales might also support a given rule.⁶⁹ Evan Criddle has argued that Chevron deference itself was the product of an incompletely theorized agreement among the justices.⁷⁰ And following Chevron, other scholars proposed additional rationales for its deferential interpretive regime (though none were ultimately accepted by the Court in Loper Bright).⁷¹

Sometimes, however, alternative rationales fare better than they did in Loper Bright. Consider Lexmark International, Inc. v. Static Control Components.⁷² Historically, the Court has recognized two distinct branches of standing doctrine. “Constitutional” standing covered the familiar Article III trifecta of injury, causation, and redressability.⁷³ “Prudential” standing referred to a broader set of principles that courts could draw on to decline entertaining a suit, including that a particular claim fell outside the “zone of interests” protected by a given law or asserted only a “generalized grievance” shared by the population at large.⁷⁴ In Lexmark, the Court cast doubt on the idea that standing doctrine encompasses a “prudential” component.⁷⁵ In so doing, the Lexmark Court did not dispose of the “zone of interests” or “generalized grievance” tests. Instead, the Court explained that whether a claim falls within the “zone of interests” protected by statute is not a question of “standing” at all, but rather of whether a statute affords a claimant a cause of action.⁷⁶ The Court took a different tack with the rule against generalized grievances, explaining that it had already refashioned that test as part of the constitutional standing inquiry in Lujan v. Defenders of Wildlife.⁷⁷ By accepting new rationales for its “zone of interests” and “generalized grievances” tests, the Court thus largely preserved their substance, while calling into question the entire concept of prudential standing.⁷⁸

In short, reharmonizing will often be an available option when a court can no longer accept the validity of a precedent’s higher-level aspects (like its rationale), but is happy to live with its lower-level ones (like its holding).

C. In Context

Having defined reharmonizing and explored its basic mechanics, we are now in a position to compare it to other methods of altering precedent.⁷⁹

Overruling. The best-known way for a court to alter precedent is by overruling it. A court overrules precedent by declaring in a subsequent case that it should have come out differently. While merely repudiating a case’s holding is sufficient to overrule it, overrulings often entail rejecting a decision’s rule and rationale as well. By contrast, reharmonizing invariably preserves a decision’s holding (and, sometimes, its rule).

Some courts and commentators use the term “overruling” to refer also to situations in which a court rejects a prior decision’s rule, even if it preserves its holding.⁸⁰ As we saw in Section I.A, this is the position that Chief Justice Rehnquist and Justice White took in their concurrences in Crawford and Gates. On this view, reharmonizing could be considered a special form of “partial overruling.”⁸¹

Confining. A court confines precedent by continuing to apply it to tightly analogous sets of facts while treating it as having been overruled in all other circumstances.⁸² Reharmonizing is related to confining because it also preserves a case’s holding while altering its rule or rationale. But the two methods differ in that reharmonizing rewrites the reasoning of an earlier case to fit within a valid rule of general applicability, whereas confining secures that holding within a fact-bound carveout to generally applicable rules.

To see the difference, consider the status of professional baseball under federal antitrust law. In Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, the Supreme Court held Major League Baseball exempt from Sherman Act liability.⁸³ The basic premise of Federal Baseball Club was that the “character of” professional baseball—putting on local “exhibitions”—was not of a sufficiently “interstate” character to trigger the Act.⁸⁴ Following Federal Baseball Club, however, the Court held that other seemingly indistinguishable exhibitions, including professional boxing, did implicate “interstate commerce.”⁸⁵ When revisiting Federal Baseball Club in Radovich v. National Football League,⁸⁶ the Court frankly acknowledged that its earlier decision could not be squared with its subsequent case law. But rather than overrule Federal Baseball Club, the Court “specifically limit[ed] [it] . . . to the facts there involved, i.e., the business of organized professional baseball.”⁸⁷ Reharmonizing Federal Baseball Club, by contrast, would have required the Court to (miraculously) identify some plausible basis for concluding that professional baseball does not implicate interstate commerce even though all other similar exhibitions do.

Narrowing. A court narrows precedent by declining to apply it to cases that it is best understood on its own terms to govern. Narrowing thus circumscribes the rule (and often the rationale) of an earlier decision.

Reharmonizing is conceptually related to narrowing, but differs in several key respects.⁸⁸ As Richard Re has explained, a court legitimately narrows “when it reasonably interprets the precedent in a way that is consistent with background legal principles.”⁸⁹ By contrast, reharmonizing is not an effort to reasonably interpret precedent, but to support it on an expressly alternative legal basis.

Narrowing and reharmonizing are also often invoked in different postures. A court generally narrows precedent—sometimes in a less than transparent way—to ensure that it no longer governs the present case.⁹⁰ By contrast, courts often reharmonize a case to explain why it should continue to govern, notwithstanding legal developments that have discredited its original reasoning. And while “a decision to narrow tends to signal that a doctrinal area is in flux,”⁹¹ reharmonizing often signals the opposite: emerging order in the aftermath of doctrinal disruption.

To be sure, reharmonizing can narrow the scope of precedent.⁹² Consider Rakas v. Illinois.⁹³ In Rakas, the question presented was whether the defendants could challenge the search of a car they were passengers in but didn’t own.⁹⁴ Prior to Rakas, the Court had held in Jones v. United States that a house guest can challenge the lawfulness of a home search.⁹⁵ In so holding, the Jones Court announced a bright-line rule that “anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress.”⁹⁶ The Court in Rakas, however, rejected Jones’s bright-line rule. Instead, the proper inquiry was recast as whether a search violated the defendant’s “legitimate expectation of privacy.”⁹⁷ That standard was not met, the Rakas Court explained, because the defendants did not have a legitimate expectation of privacy as mere passengers in someone else’s car.⁹⁸ The Rakas Court then reharmonized Jones, declaring that “the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using.”⁹⁹ This reharmonization unquestionably narrowed Jones, which the Rakas Court believed had “create[d] too broad a gauge for measurement of Fourth Amendment rights.”¹⁰⁰

But Rakas also demonstrates that reharmonizing does not always narrow precedent. Prior to Rakas, the question of whether a defendant may contest a search’s constitutionality had been treated as part of Article III standing doctrine. The Rakas Court, however, concluded that the question was instead one of substantive Fourth Amendment law—that is, “whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.”¹⁰¹ In reframing the underlying doctrinal inquiry, the Court reharmonized its prior cases on a wholesale basis: “We can think of no decided cases of this Court that would have come out differently.”¹⁰² And the Court took pains to stress that this reharmonization did not alter the basic contours of the governing legal test, because “[t]he inquiry under either approach is the same.”¹⁰³

Extending. Finally, a court extends precedent by applying it to cases that it is best understood on its own terms not to govern. Extending thus broadens the rule (and often rationale) of an earlier case. Extending differs from reharmonizing because it does not call into question any aspect of a decision’s holding, rule, or rationale within its original domain, whereas reharmonizing always entails the invalidity of a decision’s rule or rationale.

While reharmonizing differs in many respects from extending, both can lead to an increase in precedential scope. Consider the same-sex marriage decisions Obergefell v. Hodges and United States v. Windsor.¹⁰⁴ Justice Kennedy (the author of both decisions) grounded them in both the Due Process Clause and the Equal Protection Clause.¹⁰⁵ At the same time, Justice Kennedy’s somewhat Delphic reasoning left unclear whether the right to same-sex marriage could survive on equal protection grounds alone.¹⁰⁶

Imagine what would happen if the Supreme Court were to determine that those decisions cannot be squared with the demanding “history and tradition” analysis that Dobbs held is required to claim protection as a fundamental right under the Due Process Clause.¹⁰⁷ The Court could potentially reharmonize Obergefell and Windsor as solely equal protection cases; indeed, several commentators have urged that those cases should have rested exclusively on the Equal Protection Clause all along.¹⁰⁸ Doing so would likely deemphasize the fact that those decisions concern the right to marry—an essential fact for purposes of substantive due process doctrine, but not a prerequisite for the application of equal protection analysis. It might also entail the Court making clear that some degree of heightened scrutiny applies to discrimination based on sexual orientation.¹⁰⁹ Reharmonizing Obergefell and Windsor might thus have the effect of giving those decisions broader application to other cases of sexual-orientation discrimination than they currently enjoy.

II. The Case for Reharmonizing

This Part makes the case for reharmonizing as a valuable jurisprudential practice. Its chief benefits are that it promotes stare decisis values, respects the norms of common law doctrinal development, accounts for the reality of judicial fallibility, and clarifies whether and why undermined precedent remains good law. These benefits warrant a thumb on the scale in favor of reharmonizing when deciding whether to accept an alternative legal basis for undermined precedent. I then address, and rebut, constitutional and pragmatic objections to the thumb-on-the-scale approach.

A. Stare Decisis

Stare decisis comes in two varieties: horizontal (within a single court) and vertical (between court levels).¹¹⁰ As I will show, the values served by both forms of stare decisis are more closely tied to the low-level features of precedent than to its high-level ones. Because reharmonizing preserves a precedent’s low-level aspects in the face of high-level disruption, it often retains most of the benefits that stare decisis is meant to provide.¹¹¹

1. Horizontal Stare Decisis

Horizontal stare decisis is thought to promote reliance interests, judicial legitimacy, consistency, impartiality, and efficiency.¹¹² Reharmonizing helps to secure each of these benefits.

Reliance. The most broadly accepted reason for adhering to precedent is that it facilitates future planning and ensures fairness to those who rely on court decisions.¹¹³ The scope and existence of such reliance interests are empirical questions about real-world reactions to judicial rulings. And in practice, people generally rely more on low-level features of precedent than on high-level ones—that is, they often rely on a case’s holding, sometimes rely on its rule, and rarely rely on its precise rationale.¹¹⁴

Why might that be the case? In part, it is because people are far more likely to be aware of a case’s holding than its specific reasoning, and it is impossible to rely on something you are not aware of.¹¹⁵ Of course, some individuals, and many institutional actors, are familiar with the reasoning of court decisions. But awareness is often insufficient to generate concrete reliance, because the higher the level of abstraction at which a legal concept is framed, the less clear it will be how it applies to any given factual scenario. Courts accordingly often decline to credit reliance formed around legal principles when their application is too indeterminate.¹¹⁶

Consider Chevron: In the wake of that decision, government agencies and regulated parties presumably relied on the idea that Chevron deference tended to support the lawfulness of agency regulations, even when no court had specifically upheld them. Nevertheless, the Loper Bright Court brushed off any such generalized reliance interests, because “[t]o plan on Chevron yielding a particular result is to gamble not only that the doctrine will be invoked, but also that it will produce readily foreseeable outcomes and the stability that comes with them.”¹¹⁷ And the Court didn’t even bother to explain whether distinct reliance interests arose out of the fact that Chevron’s primary rationale was that Congress generally holds the unspoken intent to delegate interpretive authority to agencies, as opposed to some other reason.

Because reharmonizing always preserves a decision’s holding—and sometimes preserves its rule—it generally suffices to preserve the bulk of reliance interests that courts actually credit in the stare decisis calculus.

Legitimacy. Another commonly stated reason for deferring to precedent is that it promotes judicial legitimacy.¹¹⁸ Reharmonizing clearly has the potential to advance perceptions of legitimacy. Overruling precedent tends to lower a court’s legitimacy in the eyes of the public.¹¹⁹ And again, to the extent the public follows judicial decisions, it often understands them primarily in terms of their bottom-line holdings, only sometimes in terms of their rules, and very occasionally in terms of their precise rationales.¹²⁰ That is not to say that courts cannot undermine their perceived legitimacy by wantonly disregarding previously announced rules and rationales; I mean only that wantonly disregarding prior holdings is a surer way to do so.¹²¹

Picture what would happen if the Supreme Court rejected the tiers of scrutiny across the board as a legitimate method of constitutional adjudication. That change would be unlikely, by itself, to dramatically alter the Court’s perceived legitimacy—after all, the public at large remains blissfully unaware that the Court has ever applied something called the “tiers of scrutiny.”¹²² But the public would surely take notice if the Court began discarding constitutional holdings en masse. To take a random sampling, the Court has relied on the tiers to strike down laws and policies: discriminating against fathers in their ability to transmit citizenship to their children,¹²³ prohibiting anonymous leaflets on ballot issues,¹²⁴ barring registration of disparaging trademarks,¹²⁵ maintaining male-only attendance at military academies,¹²⁶ and imposing different drinking ages on men and women.¹²⁷ These precedents and countless others would be open for reconsideration in a tier-less world. To the extent they could be successfully reharmonized, the Court could likely stem the hit to its perceived legitimacy.

Whether reharmonizing enhances what some call “normative” legitimacy is less clear.¹²⁸ Of course, reharmonizing is a plainly legitimate practice when a precedent’s holding or rule represents the best application of still-valid legal principles. But whether it is a legitimate move to put a thumb on the scale in favor of reharmonizing precedent cannot be answered without recourse to an underlying theory of what proper judging looks like. On some views, stare decisis is inherently corrupting, such that the most legitimate thing for a judge to do is to resolve each case without giving weight to prior decisions.¹²⁹ Others maintain that the very existence of a precedent is partly constitutive of its “correctness.”¹³⁰ And yet others adopt the more modest view that fealty to precedent is per se legitimate, but fully discretionary.¹³¹ The effect of reharmonizing precedent on normative legitimacy is thus contingent on debates over what makes judging legitimate, a point to which we will return in Section II.E.

Consistency. Stare decisis is also lauded for promoting consistency in judicial decisionmaking.¹³² Reharmonizing promotes consistency by maintaining a degree of continuity in the face of legal change. In addition to promoting consistency over time, reharmonizing respects the maxim dating to Aristotle that courts should treat “like cases alike.”¹³³ This is because a decision should only be reharmonized (even under the thumb-on-the-scale approach) when it can at least plausibly coexist with a still-valid legal framework or set of principles.¹³⁴

Moreover, legal principles that change once can be changed again. In the years following Crawford, the decision has remained controversial.¹³⁵ Just last year, Justice Alito called for a full-scale reexamination, suggesting that it might be replaced with “an entirely different Confrontation Clause rule.”¹³⁶ If the Court does abandon Crawford, that will only underscore the wisdom of maintaining a stable core within Confrontation Clause case law in the face of continued doctrinal experimentation.

Impartiality. Relatedly, horizontal stare decisis is thought to promote the impartiality of the law—that is, the idea that legal outcomes should not turn on the judge(s) hearing a case.¹³⁷ In addition to advancing judicial consistency, reharmonizing furthers impartiality by affording the work of past courts continued relevance even after a significant shift in legal doctrine. This dynamic is particularly salient at the Court of Appeals level, where cases are typically heard by a three-judge panel. Putting a thumb on the scale in favor of reharmonizing precedent makes it more likely that any given configuration of three Court of Appeals judges will decide a case concerning the vitality of undermined circuit precedent in the same way as would any other, thereby reducing the degree of variation that comes with drawing a randomized three-judge panel.¹³⁸

Efficiency. Stare decisis also promotes judicial efficiency. Without affording presumptive deference to past decisions, courts would lack a mechanism for settling legal questions, encouraging litigants to relitigate propositions in perpetuity.¹³⁹ Reharmonizing furthers judicial efficiency because, when a court announces a new set of doctrinal rules, it invariably creates pockets of indeterminacy. Rather than relitigating every legal question from scratch, courts can use reharmonizing as a jurisprudential shortcut to resolve indeterminacies in favor of past settlements. As we will see in Section IV.A, this use of reharmonizing could have particularly profound implications in the aftermath of Loper Bright.

2. Vertical Stare Decisis

Like horizontal stare decisis, vertical stare decisis is said to advance reliance interests, judicial legitimacy, consistency, impartiality, and efficiency.¹⁴⁰ For the reasons just discussed, reharmonizing tends to advance those purposes in the vertical stare decisis context as well.

That said, vertical stare decisis raises a few distinct considerations. This is because vertical stare decisis functions to centralize decisionmaking authority in the judicial system, enabling the Supreme Court to bind the Courts of Appeals, and the Courts of Appeals to bind the District Courts. This centralization helps to achieve uniformity in the application of federal law by requiring courts lower down in the judicial hierarchy to act consistently with the decisions of those higher up.¹⁴¹

When the Supreme Court reharmonizes its own decisions, it does not risk undermining this uniformity. But the analysis is more complex in the Courts of Appeals. Generally speaking, the Courts of Appeals are more likely to act in accordance with the views of the Supreme Court when they faithfully apply Supreme Court precedent, including its reasoning.¹⁴² Similarly, paying close heed to Supreme Court case law generally increases the chance that the Courts of Appeals will agree with one another, reducing the prospect of “circuit splits.” Accordingly, a Court of Appeals can risk undermining uniformity in the federal system if it accepts a plausible (but on balance unpersuasive) reharmonization.¹⁴³ This suggests that the Courts of Appeals might need to be more cautious than the Supreme Court about putting a thumb on the scale in favor of reharmonizing precedent.

Still, this concern should not be overstated. Many reharmonized decisions are unlikely to lead to a circuit split (which is often a prerequisite in practice for the Supreme Court to grant certiorari).¹⁴⁴ Some legal questions typically arise only within a particular circuit. For instance, patent appeals are automatically channeled to the Federal Circuit, challenges to the constitutionality of a Virginia state law will typically be heard in the Fourth Circuit, and so on.¹⁴⁵ Circuit splits are less likely to arise in such cases, and the Supreme Court is relatively unlikely to grant review of a plausible (and splitless) reharmonization of circuit precedent.¹⁴⁶

Moreover, there will often be limited benefit to a Court of Appeals trying to head off a circuit split when the validity of a previously announced decision is a close call. Other Courts of Appeals might be happy to defer to the plausibly accurate, longstanding view of their sister circuit.¹⁴⁷ And when more than one circuit has previously come to the same conclusion, a failure to reharmonize will inevitably create a circuit split, at least in the short term. Putting a thumb on the scale of reharmonizing precedent thus seems, on balance, at least as likely to avoid circuit splits as to create them.

B. Article III

Another virtue of reharmonizing is that it respects the norms of common law doctrinal development. The power of a court to effectively “make” law—particularly an Article III court limited to resolving “Cases” and “Controversies”—is incidental to its power to decide concrete cases.¹⁴⁸ Only by binding itself and lower courts to resolve future cases consistently with past ones does a court impose de facto legal rules.¹⁴⁹ In fact, some commentators, including Justice Kavanaugh, have gone so far as to assert that some form of precedential respect inheres in the “judicial Power” bestowed by Article III.¹⁵⁰ In our adjudicative culture, legal frameworks are generally developed incrementally across a range of adjudicated fact patterns, not delivered fully formed in a single decision.¹⁵¹

By squaring past decisions with new statements of law, reharmonizing casts courts as participants in this project of iterative doctrinal evolution, rather than as minilegislatures at liberty to revoke and replace legal rules without regard to their past applications.¹⁵² As Edward Levi put it, while there is an “indispensable dynamic quality” of judge-made law, a “judge does not feel free to ignore the results of a great number of cases which he cannot explain under a remade rule.”¹⁵³

The inverse is also true: Reharmonizing can help courts to legitimate new legal tests. Take then-Judge Cardozo’s time-honored opinion for the New York Court of Appeals in MacPherson v. Buick Motor Co.¹⁵⁴ In MacPherson, Judge Cardozo looked back over a long and haphazard line of cases concerning when a person injured by a product may sue a defendant from whom they did not purchase it (e.g., the product’s manufacturer).¹⁵⁵ Some of those cases articulated an “inherently dangerous” rule, under which a plaintiff had to be in contractual privity with the defendant unless the product that injured her was dangerous by its very nature—say, a vial of poison.¹⁵⁶ Judge Cardozo flatly dispensed with the “inherently dangerous” rule. Instead, he reasoned that privity is unnecessary for any product that, when “negligently made,” is “a thing of danger.”¹⁵⁷

The crucial point for present purposes is that Judge Cardozo did not ignore prior case law in rejecting the “inherently dangerous” rule. To the contrary, he went to considerable lengths to demonstrate that a negligence standard could be squared with the outcomes of several prior New York decisions.¹⁵⁸ Those reharmonizations were more than rhetorical flourishes. Through reharmonizing, Judge Cardozo was able to cast his “negligently made” standard within the stream of common law development, rather than as a sharp divergence from it. In a meaningful sense, those reharmonized rulings actually justified his negligence standard. At the same time, reharmonizing those decisions effectively put the onus on future courts seeking to deviate from the “negligently made” test to identify a standard that better explained New York case law “as a fairly consistent whole.”¹⁵⁹

Of course, MacPherson involved a state court self-consciously exercising its power to recognize common law rules. The Supreme Court’s seminal decisions in Erie Railroad Co. v. Tompkins and Hinderlider v. La Plata River & Cherry Creek Ditch Co. disavowed an equivalent power to create federal common law outside of pockets of distinct federal concern.¹⁶⁰ Likewise, the extent to which federal courts may properly develop principles of constitutional law through case-by-case adjudication is hotly contested.¹⁶¹

This Article cannot hope to settle the debate over the proper scope of common law judging in the federal courts. My point is merely that, when courts are operating in a common law register, the ordinary norms of doctrinal development support efforts to reharmonize precedent. And it is perhaps for this reason that we most frequently see the Supreme Court reharmonizing precedent in those areas of doctrine with the strongest common law flavor.¹⁶²

C. Judicial Humility

Reharmonizing can also inject a welcome dose of humility into judicial decisionmaking during times of legal change. A majority of the Supreme Court might sincerely (but mistakenly) believe that replacing the legal rules in a doctrinal area will improve it. In fact, many historical instances of reharmonization have occurred in decisions that sharply divided the Court, with multiple justices advocating against the doctrinal change triggering the need to reharmonize.¹⁶³ It would be hubris to think that all of those changes were, in fact, wise. Courts face significant (albeit often unvoiced) epistemic uncertainty about whether an old or new legal standard is better.

One upshot of this judicial fallibility is that a reharmonized precedent might well supply the platonic “right” answer even if it is not, on balance, wholly persuasive under a new legal test.¹⁶⁴ For some readers, it might help to put the point in probabilistic terms: Say that there is a 70 percent chance that a newly adopted legal test is the “correct” one, such that it always supplies the right answer when properly applied. And say that there is, conversely, a 30 percent chance that the prior legal test was the correct standard all along.¹⁶⁵ Next, imagine that a court is faced with a challenging edge case under the new test, such that there is a 60 percent chance that a faithful application of the test leads to outcome “A” and a 40 percent chance that it leads to outcome “B.” At the same time, the case in question is an easy call under the old test, with precedent confirming that the answer is “B” with 100 percent certainty. What should the court do? Statistically, the best option is to go with “B,” which has a 58 percent chance of being correct, even though the new test would suggest it is probably wrong.¹⁶⁶

Now apply this principle to a plausible hypothetical. In Atkins v. Virginia, the Court relied on an evolving-standards analysis to hold that the Eighth Amendment’s Cruel and Unusual Punishments Clause forbids the execution of an intellectually disabled prisoner with an IQ of fifty-nine.¹⁶⁷ If the Court were to reject the “evolving standards of decency” concept, should it reharmonize Atkins? Justice Scalia’s dissent in Atkins forcefully argued that Founding-era law barred executing only “the severely or profoundly mentally retarded, commonly known as ‘idiots,’” not those who are merely “mildly retarded.”¹⁶⁸ But, of course, Justice Scalia could be wrong. For instance, Michael Clemente has pointed to an alternative standard of “idiocy,” articulated by famed common law expositor Matthew Hale and frequently applied at the time of the Founding.¹⁶⁹ And that standard purportedly encompassed a much broader group of individuals than Justice Scalia suggested: people whose mental abilities are below those of a fourteen-year-old.¹⁷⁰ If Clemente has the better of the history, the outcome of Atkins is consistent with an originalist view of the Eighth Amendment.

To be sporting, let’s give Clemente’s argument a one-third chance of being correct as an originalist matter.¹⁷¹ Let’s further stipulate that there is a one-third chance that “evolving standards of decency” are properly part of Eighth Amendment doctrine, and that there is a very high likelihood (90 percent) that executing a prisoner with an IQ of fifty-nine offends our evolved standards of decency. There would then be a 52 percent chance that Atkins supplies the platonic right answer to whether it is constitutional to execute a prisoner with so low an IQ (“no”).¹⁷² Reharmonizing would thus be warranted (under this stipulated set of probabilities) solely as a matter of trying to arrive at the best interpretation of the Eighth Amendment.

Stripping away the math, the basic point is that reharmonizing can be a way for a court to account for its fallibility and epistemic limitations in close cases—and, by doing so, to increase the chance that it will reach the best possible outcome.

D. Legal Clarity

Another key advantage of reharmonizing is that it clarifies both whether and why undermined precedent remains good law. An avulsive shift in legal doctrine calls into question the status of earlier precedent. Reharmonizing quiets those doubts and offers guidance on the domain in which a decision should continue to govern.

To see this point more clearly, consider a court’s other options following a significant change in doctrine. Rather than reharmonize, courts might be tempted to leave undermined precedent on the books, without considering whether it can plausibly be squared with still-valid legal principles. But this approach creates two problems. First, it can undermine the legitimacy of the judicial process for courts to continue applying precedent even after declaring that some essential aspect of its reasoning is wrong—at least without explaining why doing so is still justified.¹⁷³ Second, it fails to explain what should happen when a case arises that resembles the undermined precedent in some respects but differs from it in others. How are courts to know whether to apply the undermined precedent or generally applicable (and potentially incompatible) legal rules?

SEC v. Jarkesy¹⁷⁴ illustrates the problem. In Jarkesy, the Court held that the Seventh Amendment bars the Securities and Exchange Commission (SEC) from imposing civil penalties for securities fraud in agency proceedings.¹⁷⁵ That holding turned on the Court’s view that suits implicating “private” (but not “public”) rights must be heard in a court.¹⁷⁶ The line between private and public rights has proven elusive, however. In Atlas Roofing Co. v. Occupational Safety and Health Review Commission, the Court held that alleged violations of safety regulations issued under the Occupational Safety and Health Act of 1970 concerned public rights.¹⁷⁷ In the aftermath of Atlas Roofing, some lower courts—and seemingly Congress itself—read the case as licensing agencies to adjudicate virtually any claimed violation of a federal statutory scheme.¹⁷⁸ This expansive reading of Atlas Roofing was later disapproved of in Granfinanciera, S.A. v. Nordberg,¹⁷⁹ which nevertheless “favorably cite[d] to Atlas Roofing at least 12 times.”¹⁸⁰

In Jarkesy, the Court again redrew the line separating private and public rights, sharply circumscribing Congress’s ability to empower agencies to conduct in-house adjudications. The Jarkesy Court then went right up to the line of reharmonizing Atlas Roofing, noting that the safety violations there sprang from a “self-consciously novel” regulatory scheme that more closely “resembled a detailed building code” than any common law cause of action.¹⁸¹ Those claims were thus not a backdoor way for “the Federal Government to bring or adjudicate claims that traced their ancestry to the common law,”¹⁸² unlike the securities fraud adjudicated in Jarkesy, which was “‘in the nature of’ a common law suit.”¹⁸³ But rather than actually endorsing the idea that federal statutory claims without a common law analog concern only public rights, the Jarkesy Court “[left] open the possibility that” Atlas Roofing might actually “have [been] overruled” by implication thirty-five years prior in Granfinanciera!¹⁸⁴

This about-face leaves uncertain whether Atlas Roofing is good law and deprives courts of guidance as to what should happen when adjudicating Seventh Amendment challenges moving forward. Does it matter whether the alleged statutory violation resembles a cause of action known to the common law?¹⁸⁵ May the very claims at issue in Atlas Roofing—civil violations of workplace safety regulations—still be heard in agency proceedings? Had the Court reharmonized Atlas Roofing, we would know the answers to those questions. As things stand, we can only hope we won’t have to wait another thirty-five years to find out.

Of course, reharmonizing is not the only way to clarify that an undermined precedent is still good law. Courts can also confine a case to its facts. As Daniel Rice and I have argued, however, confining is a troubling practice, because “[o]nce a case has been confined to its facts, the operative question becomes whether a new case is factually distinguishable from it in any respect—even if the cases cannot be distinguished in any principled manner.”¹⁸⁶ The inevitable result is to require courts “to construct a jurisprudence at war with itself.”¹⁸⁷ Even when courts are careful (which they rarely are) in defining the circumstances in which a confined case continues to govern, “follow-on cases have arisen testing the limits of its residual domain in unexpected (and often challenging) ways.”¹⁸⁸ As a result, confining only makes sense (if ever) when confining would “protect a substantial share of all reliance interests engendered by a repudiated principle”—a condition that is likely “to be met exceedingly rarely.”¹⁸⁹

Another alternative to reharmonizing undermined precedent is to just ignore it. There is an appealing simplicity to this approach. But there are also serious drawbacks. The ignore-it approach encourages a lack of candor about when courts are de facto overruling precedent.¹⁹⁰ And as a practical matter, it will often be unrealistic to expect courts, litigants, and regulated parties to flatly ignore past decisions, even when their reasoning has been undermined.

For instance, imagine that the Court rejected the tiers of scrutiny approach to construing the Free Speech Clause of the First Amendment. If a state then passed a law banning the sale of violent video games to minors, would the Court really act like it was irrelevant that it invalidated just such a law in Brown v. Entertainment Merchants Ass’n?¹⁹¹ The gaming community—which presumably does not closely track debates over legal methodology but considers it settled that minors can purchase violent video games—would surely be surprised to hear as much. Countless other examples (many with higher stakes than the state of youth gaming culture) would abound if the Court decided to treat huge swaths of constitutional case law as if it never happened.

To be sure, not all undermined precedent would need to be ignored in a world where courts kept their thumbs off the scale when deciding whether to reharmonize. For instance, in Brown, the Court made a number of observations about how the history of American free speech practices undermined the idea that violent material constitutes “obscenity” when shown to children.¹⁹² Those portions of Brown might still be entitled to weight in assessing the history and tradition of American speech practices. But critically, it would be only those portions of Brown’s reasoning—not its bottom-line legal conclusion that states cannot ban violent (but nonobscene) video games—that would be entitled to any special solicitude.

In the end, one of the strongest arguments in favor of reharmonizing precedent might be that the alternatives to doing so can be so unsatisfying.

E. Objections

Of course, putting a thumb on the scale in favor of reharmonizing undermined precedent is likely to merit some skepticism. Both constitutional and pragmatic objections seem likely. Ultimately, however, neither type of objection discredits the thumb-on-the-scale approach.

1. Constitutional Objection

The constitutional objection goes something like this: The judicial role obligates courts to reach the best answer to legal questions, so judges may not tilt the scales in favor of accepting novel explanations for prior rulings. This is a corollary of the argument most familiar in the realm of constitutional interpretation that courts should never follow precedent they believe to be mistaken.¹⁹³

The constitutional objection is indeed rather damning—if one subscribes to very narrow, fairly uncommon views about the proper role of precedent in judicial decisionmaking. Otherwise, it falls apart. Even originalists (perhaps the interpretive camp currently least enamored with stare decisis) often believe that it is legitimate for courts to give some weight to precedent, even in constitutional cases.¹⁹⁴ And so long as it is acceptable for a court to continue following a decision it affirmatively believes to be mistaken, it should be acceptable for a court to accept a plausible alternative legal basis for it. Unless one is willing to reject the doctrine of stare decisis outright, the constitutional objection against the thumb-on-the-scale approach to reharmonizing precedent should prove unpersuasive.

2. Pragmatic Objections

Of course, even assuming that the thumb-on-the-scale approach is constitutionally permissible, there are still a few practical objections to it. One is that excessive reharmonizing might blunt opportunities for salutary legal change. After all, one of the reasons courts go through the trouble of changing legal rules is presumably to lead to different results.

Accepting this argument in its strongest form would militate against stare decisis altogether, which slows legal change by design. But, to be fair, a precedential brake on legal change takes on a different valence once a court has already declared that the reasoning underlying a precedent is flawed. And this concern is at its zenith when a change in doctrine results from the conclusion that the old regime was morally intolerable.¹⁹⁵

For instance, in a line of cases beginning with Brown v. Board of Education, the Court discarded Plessy v. Ferguson and its approval of racial segregation in “separate-but-equal” public facilities.¹⁹⁶ Those cases reflected the Court’s stated determination to put an end to de jure racial discrimination “root and branch.”¹⁹⁷ It obviously would have made no sense for the federal courts to have strained to reharmonize their earlier, morally repugnant decisions to preserve the reliance interests formed around institutionalized race segregation.¹⁹⁸

But not all doctrinal changes result from deep-seated moral disagreement with past results. As in Crawford, reharmonizing courts sometimes believe that the prior state of the law often generated the right result, but nevertheless take issue with its underlying mode of analysis. In short, courts must consider why the governing legal framework changed in deciding whether to reharmonize precedent.

A more serious concern may be that reharmonizing can be used to facilitate legal change. This is because, once they have assured themselves that they can continue to respect past holdings, courts might become more likely to displace settled rules in the first place. Indeed, the Supreme Court sometimes “peeks ahead” to see whether it can reharmonize past decisions when deciding whether to embark on a new doctrinal course.

District of Columbia v. Heller offers an instructive example.¹⁹⁹ In Heller, the Court (in an opinion by Justice Scalia) held that the Second Amendment affords an individual right to bear arms.²⁰⁰ Before enshrining that “original meaning” into doctrine, Justice Scalia stopped to “ask whether any of our precedents foreclose[d]” that interpretation.²⁰¹ The chief sticking point was United States v. Miller.²⁰² In Miller, the Court held that the Second Amendment did not bar a federal prosecution for possession of a short-barreled shotgun, because possessing such a weapon does not bear a “reasonable relationship to the preservation or efficiency of a well regulated militia.”²⁰³ Lower courts had long understood Miller to mean that the Second Amendment protects the right to bear arms only for military use.²⁰⁴ Justice Scalia had a different spin, “read[ing] Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”²⁰⁵ Having satisfied himself that Miller’s “holding” could thus be squared with an individual right to bear arms, Justice Scalia “conclude[d] that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.”²⁰⁶

As Heller illustrates, reharmonizing can be invoked not just as a brake on, but also as an engine of, legal change.²⁰⁷ This is a troubling possibility. Although most of the benefits of stare decisis stem from preserving low-level aspects of precedent, that does not mean that courts should lightly disregard high-level reasoning. Relatively few commentators subscribe to the view that courts should respect only the holdings of past decisions; most agree (as do I) that fealty to reasoning itself advances the purposes of stare decisis.²⁰⁸

The solution, however, is not to discount the value of reharmonizing. It is to more cleanly disaggregate the decision of whether to alter a legal rule from the decision of whether to reharmonize past cases decided under it. Of course, the fact that a change of law will leave past holdings undisturbed is not irrelevant to the wisdom of that change; it is clearly preferable from a stare decisis perspective. But that does not mean that a court should be able to grant itself license to disregard the reasoning of past decisions whenever it can manage to reharmonize them.²⁰⁹

Another likely pragmatic objection to the thumb-on-the-scale approach is that it is malleable. Some might worry that a judge’s view on whether to reharmonize precedent is likely to track her view on whether the decision was correctly decided in the first place. That is, reharmonizing might be used as a fig leaf (barely) obscuring fights on the merits.

It is true that precedential arguments of all stripes can be weaponized in merits proxy fights.²¹⁰ But this concern does not obviate the usefulness of reharmonizing for the same reason it does not justify abandoning stare decisis altogether. Many jurists look to precedent in good faith as a meaningful determinant of legal decisionmaking. For those judges, the decision of whether to reharmonize a decision can (and should) be distinguished from a pure referendum on its merits.

In any event, the value of reharmonizing does not necessarily depend on whether it constrains judicial discretion. As Richard Re notes, precedent plays a powerful role in our judicial system even if it is thought of only as providing permission for courts to rule consistently with past decisions, without any attending obligation to do so.²¹¹ Even under a pure permission model, the reality is that some judges (and academic commentators) will want a principled basis on which to avoid unduly disturbing important legal settlements while moving the law in their preferred direction.²¹²

A final practical objection to putting a thumb on the scale in favor of reharmonizing precedent is that, in the quest to preserve old rulings, courts might “distort” the development of legal doctrine. That is, even if there is nothing constitutionally problematic about straining to reharmonize precedent, we might still worry about the doctrinal costs of doing so.

Recall Heller: By reharmonizing Miller—as opposed to overruling it—the Supreme Court arguably distorted the “true” scope of Second Amendment coverage. That is because, for Miller to be consistent with an individual right to bear arms, it must be the case “that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”²¹³ That reading of Miller could be considered a distortion from an originalist standpoint; indeed, Justice Scalia’s majority opinion scrupulously avoided saying it accurately captured the original public meaning, only that it was “fairly supported by the historical tradition.”²¹⁴

The concern that reharmonizing precedent might distort doctrinal development cannot be dismissed out of hand. But it should also be kept in perspective. Stare decisis always raises this concern by encouraging courts to stick with precedent even when they suspect it was wrongly decided. Moreover, many legal rules are naturally cabined to their local context. As Chad Oldfather put it,

[T]he methodologies that the Court develops for lower courts to use in implementing the “testimonial hearsay” standard are by their nature limited to the narrow doctrinal confines of the relationship between the Confrontation Clause and hearsay. There is no danger of their leading to inadvertent mischief in the law of takings or the dormant Commerce Clause.²¹⁵

The extent to which reharmonizing risks distorting doctrine can thus only be assessed on a case-by-case basis. It is not a blanket reason to keep a thumb off the scale when deciding whether to reharmonize.

III. When to Reharmonize

This Part puts the pieces together and advances a three-part test for determining when to reharmonize precedent. Specifically, a court should reharmonize one of its prior decisions when (1) its original reasoning is no longer tenable; (2) a plausible alternative legal basis exists on which to uphold its holding or rule; and (3) the benefits of doing so outweigh the costs to doctrinal integrity.

A. Unsustainable Reasoning

Reharmonizing is warranted only when a decision’s original reasoning has either been formally repudiated or otherwise become untenable. If a decision’s original reasoning remains viable, reharmonizing will rarely, if ever, be the best option.

A few things can render a decision’s reasoning unsustainable. For instance, an intervening decision might have eroded its doctrinal underpinnings.²¹⁶ Alternatively, a precedent might rest on a moral worldview out of step with prevailing sensibilities, such as by relying on racial or gender stereotypes a modern court would be loath to dignify.²¹⁷

Ultimately, however, it is beyond the scope of this Article to settle the precise circumstances in which courts may legitimately depart from their prior reasoning.²¹⁸ For present purposes, it should suffice to say that reharmonizing is a tool for the second-best world²¹⁹—one in which a court can no longer stand by a decision’s original reasoning and must decide what to do next. Reharmonizing recognizes the reality of legal change and seeks to shape it in the most productive and least disruptive way possible. This first step in the analysis is a gut check that such change is truly necessary.

B. Plausible Alternative Legal Basis

Reharmonizing is only appropriate when there is a plausible alternative legal basis on which to uphold an undermined precedent.²²⁰ How are courts to determine whether an alternative legal basis is “plausible”? The short answer is: Courts know plausibility when they see it.²²¹ We all have an intuitive sense of when a legal question seems “close,” and thus potentially susceptible to more than one plausible resolution. Recall H.L.A. Hart’s famous hypothetical rule decreeing that there be “No Vehicles in the Park.”²²² We might disagree on whether a bicycle is a vehicle.²²³ But most of us would agree (as Hart himself did) that a bicycle is at least plausibly a vehicle.²²⁴

The long answer is that the fonts of legal indeterminacy are manifold. Start with epistemic concerns. Even if we all agreed (which we do not) that the proper way to interpret the Constitution is to ascertain its original public meaning, we might still lack sufficient historical information from which to reconstruct how a given constitutional phrase was understood by the American public in 1789 (much less how that understanding maps on to a particular legal controversy in 2026).²²⁵

Legal indeterminacy can also arise from its linguistic counterpart. Kevin Tobia recently surveyed a group of English speakers on whether a bicycle is a vehicle.²²⁶ There was significant disagreement: A little under two-thirds of respondents said “yes,” a little more than one-third said “no.”²²⁷ Even with perfect information about how ordinary speakers understand the word “vehicle,” we might conclude that there is simply insufficient consensus on the boundary of that term for there to be a definitive plain-language answer as to whether a bicycle qualifies.

Furthermore, some legal tests call for the exercise of judgment. For instance, the test set out in Mathews v. Eldridge asks whether the process afforded to a claimant denied public benefits is constitutionally sufficient in light of the nature of the benefit at issue, the risk of an erroneous deprivation, and the burden of additional process on the government.²²⁸ By its very nature, that kind of open-ended balancing test will lack a definite answer in any number of challenging edge cases.

Each of these forms of indeterminacy can lead to there being more than one plausible resolution to a legal question. In fact, some legal concepts—the rule of lenity, the doctrine of constitutional avoidance, the now-defunct Chevron interpretive regime—expressly depend on the idea that legal questions sometimes have more than one plausible resolution.²²⁹

At the same time, the circumstances in which a judge will recognize multiple plausible outcomes will turn in part on her interpretive philosophy.²³⁰ Legal realists are disposed to think that legal doctrine is indeterminate and can be manipulated to preferred ends.²³¹ Legal formalists often maintain that legal questions generally have a single correct answer.²³²

This is a disappointing conclusion, because it suggests that the class of judges currently most likely to aver that a precedent’s reasoning is unsustainable (i.e., formalists) may also be the least likely to see a plausible alternative legal basis for it. Still, there is reason not to despair. Nearly all jurists and commentators, regardless of their interpretive persuasions, acknowledge that legal questions are sometimes susceptible to multiple plausible resolutions. Many originalists recognize what Lawrence Solum calls the “construction zone”—an area in which “the constitutional text does not provide determinate answers to constitutional questions”—even if they disagree on its size.²³³ And those who believe that multiple classes of inputs legitimately factor into legal interpretation might countenance an even broader range of outcomes.²³⁴ For instance, in Constitutional Fate, Philip Bobbitt famously set out six interpretive modalities (textual, historical, structural, doctrinal, ethical, and prudential), any of which, he claimed, could establish the soundness of a constitutional interpretation.²³⁵

So plausibility might be in the eye of the beholder—but almost all of us see it sometimes.

C. Benefits Outweigh Costs

And finally, courts should only reharmonize precedent when the benefits of doing so outweigh the costs. This is an easy call when the alternative legal basis for preserving an undermined decision is not just plausible, but independently persuasive. There is only upside to reharmonizing such cases, and courts should not hesitate to do so.

Things are a bit trickier when a court believes that an alternative legal basis for an undermined precedent is plausible, but on balance unpersuasive, such that the court would not accept it if the underlying legal proposition at issue were a matter of first impression. In such circumstances, courts need to tally up the benefits and costs of reharmonizing a given precedent as best they can and see how the scales tip.

As noted above, the primary virtue of reharmonizing is that it often promotes the values underlying stare decisis.²³⁶ Figuring out whether reharmonizing a particular precedent would advance those values is a two-step process. The first step asks whether a decision has generated meaningful reliance interests, garnered broad public acceptance, or otherwise formed an important part of the legal fabric.²³⁷ If not, there will be less of a point in bothering to reharmonize it.²³⁸

The second step asks whether reharmonizing would actually vindicate the stare decisis values attached to a precedent. Because those values often form primarily around a decision’s low-level aspects, merely preserving a case’s holding will often suffice to satisfy this step. That said, there are also times when a relatively high-level aspect of a precedent is more influential than its concrete result.²³⁹ For instance, in McDonnell Douglas Corp. v. Green,²⁴⁰ the Supreme Court established a three-part burden-shifting test for adjudicating cases of alleged disparate treatment under Title VII of the Civil Rights Act of 1964.²⁴¹ To the extent McDonnell Douglas has generated reliance interests or popular acceptance, it is overwhelmingly in terms of its complex evidentiary framework. Little would be accomplished by reharmonizing any lower-level aspect of McDonnell Douglas without also preserving that three-part test.²⁴²

As noted above, reharmonizing precedent also provides benefits beyond the standard stare decisis fare. It respects the evolutionary, case-by-case process of doctrinal development and helps to justify changes to doctrinal rules by grounding them in previously adjudicated fact patterns.²⁴³ It increases the chance a court will arrive at the platonic “right” answer in close cases given the reality that some doctrinal shifts turn out to be misguided.²⁴⁴ And it can help to usher in a return to doctrinal clarity in the aftermath of an avulsive legal change.²⁴⁵ Each of these benefits adds to the tally in favor of reharmonizing.

Against those benefits, courts must weigh the costs. The primary concern is that accepting a plausible, but on balance unpersuasive, alternative legal basis might unduly distort doctrine. For the Courts of Appeals, this also encompasses the possibility that reharmonizing will generate a circuit split or Supreme Court reversal.²⁴⁶ In assessing the costs of doctrinal distortion, courts should be sensitive to the nature of the legal question at issue. A court might be willing to tolerate larger distortions in a dispute over, say, the Employee Retirement Income Security Act of 1974 (which Congress can correct if it chooses to) than when adjudicating important issues of First Amendment law (which Congress must learn to live with).²⁴⁷

IV. Reharmonizing in Practice

This Part explores how the framework set out in Part III comports with the doctrinal frameworks governing the use of precedent in the federal courts. As I will show, reharmonizing is both consistent with, and helps to clarify, the “special justification” test sometimes invoked by the Supreme Court, as well as the Shearson and prior panel precedent rules deployed by the Courts of Appeals. To illustrate, I explore the precedential issues surrounding the demise of Chevron deference, the possible end of substantive due process, and the hollowing out of Bivens doctrine.

A. Chevron and the Special Justification Test

Several Supreme Court justices apply (albeit inconsistently) what is known as the “special justification” test.²⁴⁸ As its name suggests, that test purports to require the Court to identify a special justification for overruling a precedent beyond merely a belief that it was wrongly decided.²⁴⁹ Some special justifications arise from features of an opinion that are, in theory, distinct from an assessment of its merits (e.g., that the precedent has proven “unworkable” in practice). Other justifications, however, are expressly tethered to a case’s substantive correctness.²⁵⁰

One such merits-sensitive special justification is “doctrinal erosion.”²⁵¹ Erosion occurs when “a significant change in, or subsequent development of,” Supreme Court case law has chipped away at a decision’s doctrinal underpinnings.²⁵² In other words, the Court cites doctrinal erosion when a decision’s reasoning is no longer sustainable in light of intervening case law—the very circumstance in which it might instead choose to reharmonize.

The framework set out above helps to explain whether courts should overrule or reharmonize precedent whose doctrinal underpinnings have been eroded.²⁵³ Consider Loper Bright, in which the Court faced two precedential dilemmas.²⁵⁴ First, it had to decide whether to preserve Chevron’s deferential interpretive framework, either on its original rationale or on an alternative legal basis. Others have argued that the ordinary operation of stare decisis should have persuaded the Court to uphold Chevron in full.²⁵⁵ This Article can add little to that well-aired (and now largely moot) debate.

I have more to say, however, about the Court’s refusal to accept an alternative legal basis for Chevron’s decision rule. As Randy Kozel (rightly) argued prior to Loper Bright, “principles of stare decisis support judicial efforts to retheorize Chevron in order to preserve the case’s rule of decision.”²⁵⁶ But the very structure of the Chief Justice’s opinion ensured that Chevron deference never had a fair shot at being reharmonized. The Chief Justice first considered (and rejected) a litany of alternative rationales.²⁵⁷ Only after the Chief Justice had rejected each of them—nearly thirty pages into his opinion—did he ask whether “the doctrine governing judicial adherence to precedent[] requires us to persist in the Chevron project.”²⁵⁸ That approach took the Court’s thumb off the scale in favor of reharmonizing the doctrine of Chevron deference by requiring any alternative rationale to be independently persuasive, not just plausible.

The Chief Justice’s eagerness to dispose of Chevron’s two-step interpretive framework did not translate into a desire to overrule the Court’s hundred-plus past decisions applying it, however. The Court thus faced a second precedential quandary: How could it overrule Chevron’s rule without disturbing its progeny?

The Chief Justice opted for ipse dixit: Loper Bright “do[es] not call into question” the Court’s “prior cases that relied on the Chevron framework.”²⁵⁹ That is, “[t]he holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.”²⁶⁰ Why? The Chief Justice’s explanation consisted of two sentences: “Mere reliance on Chevron cannot constitute a ‘“special justification”’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided.’ That is not enough to justify overruling a statutory precedent.”²⁶¹

The Chief Justice’s terse explanation has confounded commentators and lower courts alike.²⁶² Start with the dubious claim that discarding Chevron deference was not a “special justification” for overruling Chevron-era cases despite the manifest erosion of their doctrinal underpinnings. The only support the Chief Justice offered for that proposition was a bare citation to CBOCS West, Inc. v. Humphries.²⁶³ In that case, the Court declined to revisit a statutory precedent decided in an era when “the Court placed less weight upon the textual language itself,” reasoning that “[p]rinciples of stare decisis . . . demand respect for precedent whether judicial methods of interpretation change or stay the same.”²⁶⁴ But the logic of CBOCS West does not apply (cleanly at least) to Chevron. The federal courts never treated Chevron deference akin to broad theories of statutory interpretation like textualism or purposivism. While such generalized approaches to reading statutes have never been considered precedentially binding, the same cannot be said of Chevron deference: Both the Supreme Court and lower courts often discussed it as being mandatory.²⁶⁵

Another problem with the Chief Justice’s explanation is that decisions relying on Chevron are not statutory precedents in the classic sense.²⁶⁶ The holdings in those cases boil down to the idea that an agency’s reading of a statute is permissible.²⁶⁷ But the significance of that conclusion is unclear after Loper Bright, in which the Chief Justice declared that it “makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best.”²⁶⁸ Presumably, the Chief Justice envisions that challenges to a “specific agency action” previously upheld under Chevron should fail. But beyond that narrow scenario, things get much murkier. What if the agency takes a new action (e.g., promulgating a regulation, taking an enforcement action) predicated on the same resolution of a statutory ambiguity? Do Chevron-era precedents insulate those new agency actions from challenge as well? Are agencies “locked in” to the statutory interpretations upheld in a Chevron-era decision? Or do they retain the discretion to adopt a new “permissible” interpretation (as permitted by the Chevron doctrine itself), such as by shifting to the “best” reading of the statute?²⁶⁹ And whatever the answers to these questions, do they hold true with respect to the many thousands of Chevron-era decisions by the federal Courts of Appeals²⁷⁰ (which do not universally apply a “special justification” test to their own precedent)?

The Chief Justice could have avoided this confusion by applying the framework set out in Part III. First, there will generally be a plausible alternative legal basis on which to uphold Chevron-era decisions: They are (plausibly) the best reading of the statute. That is because Chevron deference only came into play when statutory language was ambiguous and the agency’s reading reasonably resolved that ambiguity. Furthermore, many Chevron-era cases have engendered substantial reliance or significant acceptance among a regulated community. Moreover, recasting the statutory interpretations approved in Chevron-era cases as the “best” statutory reading will usually pose manageable risks of doctrinal distortion, as statutory interpretation is often a statute- and context-specific inquiry.²⁷¹

Furthermore, this framework explains why the Courts of Appeals should generally continue to follow their own Chevron-era decisions. Those decisions are equally straightforward to reharmonize, have often generated reliance interests or broad acceptance, and are relatively unlikely to create disagreement among the Courts of Appeals given that the Chevron doctrine itself significantly lowered the number of circuit splits.²⁷²

Reharmonizing Chevron-era decisions would also help resolve questions about their residual scope. An agency would indeed be “locked in” to the interpretation previously upheld in a Chevron-era case. But that would usually pose little practical concern; agencies typically have not backtracked on statutory interpretations upheld in Chevron-era cases anyway.²⁷³ And that locked-in interpretation would be valid not only for the specific agency action in which it was previously approved, but also for any other actions based on that same interpretation.²⁷⁴

B. Substantive Due Process and the Shearson Rule

The Supreme Court’s Shearson rule imposes an absolute bar on lower courts conducting an “anticipatory overruling” of Supreme Court precedent.²⁷⁵ While the Shearson rule is deeply entrenched in practice (with the Court sometimes calling out defections by lower courts),²⁷⁶ the rule has come under some criticism. The thrust of the critique is that, when it is obvious that a decision’s underpinnings have been eroded, waiting for the Court to overrule the eroded decision invites unnecessary delay and leaves the law indefinitely muddled.²⁷⁷

The possibility of reharmonization helps to illuminate the terms of this debate. As discussed in Section IV.A, the fact that a decision’s underpinnings have been eroded does not mean that it will be overruled; it might instead be reharmonized. As a realistic hypothetical will illustrate, this possibility goes a long way toward justifying Shearson’s bright-line rule.

Say that the Supreme Court takes Justice Thomas up on his longstanding desire to hold that the Due Process Clause does not possess a “substantive component.”²⁷⁸ In the aftermath of that doctrinal earthquake, the Courts of Appeals would likely be asked to confront the vitality of a wide range of Court decisions. Substantive due process, after all, underpins constitutional entitlements as diverse as the right to enter interracial and same-sex relationships, to obtain contraception, to cohabit with close family members, and to make educational decisions about one’s children.²⁷⁹ To be sure, some of the cases establishing those rights might well be overruled by the Court itself if substantive due process were erased from constitutional law. Certainly, that is what Justice Thomas has in mind for Griswold, Lawrence, and Obergefell, which he has labeled “demonstrably erroneous decisions.”²⁸⁰

But mass overrulings are not inevitable. As Justice Thomas acknowledged in Dobbs, it would first be necessary to decide “whether other constitutional provisions guarantee [these] myriad rights.”²⁸¹ Justice Alito’s majority opinion nodded to one such possible alternative legal basis: “Some scholars and Justices have maintained that the Privileges or Immunities Clause is the provision of the Fourteenth Amendment that guarantees substantive rights.”²⁸²

Of course, the Privileges or Immunities Clause is no silver bullet.²⁸³ Many of the Court’s substantive due process decisions enshrine rights that run counter to common practice at the time of the Fourteenth Amendment’s adoption. As the Dobbs dissenters remarked of the law circa the 1860s,

It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use.²⁸⁴

To reharmonize Lawrence, Obergefell, and Griswold, therefore, a “history and tradition” test grounded in the Privileges or Immunities Clause would likely need, at minimum, to account for postenactment history and tradition.²⁸⁵ The Court in Dobbs pointedly left open whether such history and traditions can rightly be considered.²⁸⁶

But even if the Privileges or Immunities Clause weren’t up to the task, many of the Court’s substantive due process decisions might survive on other legal bases. As already discussed, some of those decisions might be transposed into Equal Protection Clause doctrine. And still other reharmonizations—say, under the First Amendment—might be available for other substantive due process precedents.²⁸⁷

Of course, a lower court might not view any of these reharmonizations as wholly persuasive. But reharmonizing provides a reason to accept even plausible alternative explanations, and the Supreme Court might take a broader view of plausibility than any given lower court judge. In these circumstances, the Shearson rule seems a wiser policy than letting the lower courts take a first crack at deciding which Court precedents should (and should not) be reharmonized. By the same token, the Shearson rule underscores the importance of the Court proactively reharmonizing its undermined precedent, rather than leaving it on the books without settling its status as good law.

C. Bivens and the Law of the Circuit

Finally, consider the “prior panel precedent rule” employed by the federal Courts of Appeals. As a general rule, the decision of one three-judge panel represents the “law of the circuit” and can be overruled only by the Court of Appeals sitting en banc or by a ruling of the Supreme Court.²⁸⁸ But there is an exception to this rule when overruling panel precedent is necessary to bring circuit law into conformity with intervening Supreme Court case law.²⁸⁹

The Courts of Appeals disagree, however, on how on-point an intervening Supreme Court decision must be to authorize a departure from prior panel precedent. Is it enough that the Supreme Court decision “casts doubt” on circuit precedent?²⁹⁰ Or must it “actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel”?²⁹¹ The Courts of Appeals do not answer these questions consistently.²⁹²

The framework set out above helps to illuminate how the Courts of Appeals should deal with potential conflicts of precedent. The first consideration is whether an intervening Supreme Court decision invalidates the essential reasoning of prior panel precedent. If it does not, the Courts of Appeals should continue following it;²⁹³ the mere potential for future conflict is too speculative to empower one three-judge panel to discard the law of the circuit.²⁹⁴ But critically, even if intervening Supreme Court authority does repudiate the reasoning of circuit precedent, that does not mean that a panel should lightly discard it. Instead, it should determine whether there is a plausible alternative legal basis for reharmonizing circuit precedent. If there is not, it should be overruled. But if there is, the panel should weigh the benefits of reharmonizing against the costs, accounting for the chance of creating a circuit split or disagreement by the Supreme Court.

Take the rampant confusion in the Courts of Appeals over how to apply the remnants of the Bivens line of cases. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,²⁹⁵ the Supreme Court held that persons subjected to unreasonable searches and seizures in violation of the Fourth Amendment may sue federal officials for money damages, despite the absence of a statutory cause of action.²⁹⁶ In two follow-on cases, the Court likewise recognized implied causes of action to sue for damages under the Fifth Amendment’s Due Process Clause in Davis v. Passman and under the Eighth Amendment’s Cruel and Unusual Punishments Clause in Carlson v. Green.²⁹⁷

The heyday of Bivens was not to last, however. In Ziglar v. Abbasi,²⁹⁸ the Court severely limited the scope of Bivens remedies.²⁹⁹ Following Abbasi, an implied remedy for an alleged constitutional violation remains available if it arises in the same “context” as Bivens, Davis, or Carlson.³⁰⁰ But “even a modest extension” of Bivens, Davis, or Carlson “is still an extension,” and thus presents a “new Bivens context” unless the difference is truly “trivial.”³⁰¹ If a case presents a “new Bivens context,” an implied cause of action for an alleged constitutional violation is unavailable unless there are no “special factors counselling hesitation” against recognizing it (a virtually impossible test to meet in practice).³⁰²

Prior to Abbasi, however, the Courts of Appeals had already recognized Bivens remedies for constitutional claims that went beyond the facts of Bivens, Davis, and Carlson. Unsurprisingly, difficult questions have emerged as to the vitality of that circuit precedent post-Abbasi.³⁰³ Consider Egbert v. Boule.³⁰⁴ Plaintiff Robert Boule owned the aptly named “Smuggler’s Inn,” a bed-and-breakfast straddling the U.S.–Canada border.³⁰⁵ Defendant Erik Egbert was a U.S. Border Patrol agent who had previously used Boule as a paid confidential informant.³⁰⁶ Egbert suspected that one of Boule’s guests was seeking to enter the United States illegally and followed the guest to Smuggler’s Inn.³⁰⁷ After Boule asked Egbert to leave, an altercation ensued, and Egbert reported Boule to various government agencies, including for alleged tax fraud.³⁰⁸ Boule then filed a Bivens suit seeking damages against Egbert for violations of the Fourth Amendment’s prohibition on excessive force and the First Amendment’s prohibition on retaliation for protected speech.³⁰⁹

The Ninth Circuit permitted both claims to move forward.³¹⁰ It concluded that Boule’s First Amendment and Fourth Amendment claims each presented a new Bivens context.³¹¹ The First Amendment claim was a new context because it concerned an entirely different type of constitutional violation than those in Bivens, Davis, and Carlson.³¹² The Fourth Amendment claim represented a new context because the claims at issue in Bivens were raised against Federal Bureau of Narcotics agents, not Customs and Border Protection (CBP) agents.³¹³ Nevertheless, the Ninth Circuit concluded that no special factors counseled hesitation against entertaining Boule’s claims.³¹⁴ In its ruling, the Ninth Circuit cited pre-Abbasi circuit precedent indicating that both First Amendment claims³¹⁵ and claims against CBP agents³¹⁶ were permitted under Bivens.

The Supreme Court reversed on both grounds.³¹⁷ It split bitterly on whether Boule’s Fourth Amendment claim represented a new context and whether special factors counseled hesitation against allowing the claim to move forward if it did.³¹⁸ But all nine justices voted to reverse the Ninth Circuit’s decision to entertain Boule’s First Amendment claim.

Consider how the Ninth Circuit could have made use of the framework set out in this Article. Was there a plausible alternative legal basis for the pre-Abbasi cases the Ninth Circuit cited in Egbert? Certainly there was for the cases it cited for the proposition that Bivens permits plaintiffs to sue CBP agents for Fourth Amendment violations; the justices themselves split on that question. But the Ninth Circuit’s conclusion that no special factors counseled against entertaining the First Amendment claims at issue seems implausible. Indeed, none of the justices agreed with it. And even if the Ninth Circuit’s assessment had been plausible, the risk of doctrinal distortion was clearly elevated. As Justice Sotomayor explained, permitting the First Amendment claim to proceed would mean “retaliation claims could potentially be brought against many different federal officers, stretching substantially beyond the ‘common and recurrent sphere of law enforcement’ to reach virtually all federal employees,” giving rise to “a new species of litigation.”³¹⁹

The Ninth Circuit’s decision to stand by its precedent permitting Fourth Amendment claims against CBP officers thus seems reasonable (if ultimately inconsistent with the views of a majority of the justices). But its decision to permit Boule’s First Amendment claims to proceed was, as the Supreme Court unanimously concluded, misguided.³²⁰

Conclusion

This Article identified the phenomenon of precedential reharmonization, defended its use, explained its limits, and showed how it both comports with and helps to explain existing precedential doctrines. Reharmonizing cannot—and should not—save every precedent threatened by shifting interpretive and ideological commitments at the Supreme Court. But it offers a principled and practical means of honoring stare decisis while acknowledging the reality that legal understandings and judicial attitudes invariably change over time. And it offers the federal courts a jurisprudential lifeline to hold on to during an age of overruling.

* Assistant Professor, Villanova University Charles Widger School of Law. Many thanks to Rachel Bayefsky, Mitch Berman, Guido Calabresi, William Eskridge, Jean Galbraith, Abbe Gluck, Randy Kozel, Richard Re, Daniel Rice, Kim Roosevelt, Amanda Shanor, Kate Shaw, Catherine Struve, and the participants at the Penn Carey Law Faculty Ad Hoc Workshop for helpful comments and conversations. Thank you to Aviv Barad, Kyle Bradley, Amanda Donoghue, and Ben Kilano for invaluable research assistance.