When asked during a 2022 appearance at the University of Pennsylvania about the opinions of which she was most proud, Justice Elena Kagan cited her 2015 opinion in Kimble v. Marvel Entertainment, LLC as one she had “thought about a lot over the years.” As a legal matter, the case was a relatively obscure one, arising from a dispute over the royalties from the patent for a Spider-Man toy. The inventor of the toy asked the court to overrule Brulotte v. Thys Co., a 1964 decision holding that a patent holder cannot charge royalties for the use of his invention after the patent expires.
By a vote of 6-3, the Supreme Court left Brulotte in place. Kagan’s opinion for the majority is perhaps best remembered for its discussion of stare decisis, the principle that courts should generally not overturn their earlier rulings unless there is a very good reason to do so. Kagan called stare decisis “‘a foundation stone of the rule of law.’” And she concluded: “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly.”
In her discussion of Kimble at the University of Pennsylvania, Kagan told the audience that her opinion “committed me to a lot by writing it.” Indeed, since that 2015 decision, Kagan has been perhaps the staunchest defender of precedent on the court.
For example, in the 2017 case of Janus v. American Federation of State, County, and Municipal Employees, the court – in a decision by Justice Samuel Alito – held that government employees who are represented by, but do not belong to, a union cannot be required to pay a fee to cover the union’s cost to negotiate a contract that applies to all employees. That decision overruled the 1977 decision in Abood v. Detroit Board of Education, holding that such fees did not violate the First Amendment.
Kagan dissented, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. “Rarely,” Kagan wrote, “if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis.”
In 2019, in Knick v. Township of Scott, the court ruled that a property owner can bring a federal claim that a local town ordinance violates the Fifth Amendment’s ban on taking private property without just compensation when the government takes the property. The court overturned its 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County, holding that a property owner must first seek compensation from the state instead.
Kagan wrote the dissent, which was joined by her fellow Democratic appointees. She emphasized that in Franchise Tax Board of California v. Hyatt, another recent decision reversing the court’s prior precedent, Breyer’s dissent had “concluded: ‘Today’s decision can only cause one to wonder which cases the Court will overrule next.’ Well,” Kagan said, “that didn’t take long. Now one may wonder yet again.”
Not all of the decisions in which Kagan voted against overruling precedent divided strictly on ideological lines, however. In 2018’s South Dakota v. Wayfair, the court – in an opinion by Justice Anthony Kennedy, joined by Ginsburg, Alito, and Justices Clarence Thomas and Neil Gorsuch, held that out-of-state sellers without any physical presence in a state can nonetheless be required to collect taxes on sales made within the state. In so holding, the majority overruled its 1992 decision in Quill Corp. v. North Dakota. “Though Quill was wrong on its own terms when it was decided in 1992,” Kennedy reasoned, “since then the Internet revolution has made its earlier error all the more egregious and harmful.”
Kagan (along with Breyer and Sotomayor) joined a dissent by Chief Justice John Roberts. He wrote that Congress, rather than the courts, should make any changes “with the potential to disrupt the development of such a critical segment of the economy.”
Kagan’s split from the other Democratic appointees was even sharper two years later, in Ramos v. Louisiana, in which Gorsuch – joined by Ginsburg, Breyer, Sotomayor, and Justice Brett Kavanaugh, with Thomas agreeing with the result – wrote for the majority in holding that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious offense.
Alito dissented, in an opinion that Roberts joined in full and Kagan joined in large part. He argued that the court was overruling its 1972 decision in Apodaca v. Oregon, which upheld the use of nonunanimous verdicts in state criminal trials. Alito said that he “would not overrule Apodaca. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance.”
Kagan’s support for, and adherence to, stare decisis has perhaps reached its zenith in recent years, as shown in the court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. In that case, the court overturned the court’s landmark rulings in Roe v. Wade and Planned Parenthood v. Casey, recognizing a constitutional right to an abortion.
A rare joint dissent by Breyer, Sotomayor, and Kagan criticized what they characterized as “[t]he majority’s cavalier approach to overturning this Court’s precedents.”
Two years later, in Loper Bright Enterprises v. Raimondo, the court overturned its 1984 decision in Chevron v. Natural Resources Defense Council, holding that when a federal law is ambiguous, courts should generally defer to an agency’s reasonable interpretation of that law.
Kagan dissented, joined by Sotomayor and Justice Ketanji Brown Jackson (who was recused from Loper Bright, which was consolidated with Relentless, Inc. v. Department of Commerce). She described the court’s ruling in Chevron as “entrenched precedent, entitled to the protection of stare decisis, as even the majority acknowledges. In fact,” she argued, “Chevron is entitled to the supercharged version of that doctrine because Congress could always overrule the decision, and because so many governmental and private actors have relied on it for so long.”
Kagan’s adherence to precedent has also led her to accept decisions from which she originally dissented when these issues arise in subsequent cases. During the 2025-26 term, for example, the court in Wolford v. Lopez struck down a Hawaii law that barred gun owners with concealed-carry permits from bringing their guns onto private property that is open to the public unless they have the property owner’s express permission.
Although all three Democratic appointees dissented, Kagan did not join Jackson’s dissenting opinion, which Sotomayor joined. Jackson criticized the justices’ 2022 decision in New York State Rifle & Pistol Association v. Bruen, in which the majority ruled that that courts should only uphold gun restrictions that are “consistent with the Nation’s historical tradition of firearm regulation.” In Jackson’s view, the court’s “adoption of the Bruen test was a grave mistake.”
Kagan argued in her own dissenting opinion only that the Hawaii law was “a modern-day analogue of colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent.” And she dismissed the majority’s contention that those older laws “had a special (though by no means exclusive) concern with poaching.” Quoting Bruen, she emphasized that “‘[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied’ earlier generations.”
To be sure, Kagan has voted several times to overrule the court’s earlier decisions. But even here, she has joined opinions explaining why overruling such precedent better serves the principle of stare decisis. For example, in 2015’s Johnson v. United States, she joined Justice Antonin Scalia’s opinion for the majority, which held that a provision of the Armed Career Criminal Act allowing courts to increase a defendant’s sentence if he had committed any felony that “involves conduct that presents a serious potential risk of physical injury to another” violates the Constitution’s guarantee of due process because it is too vague. In so holding, the court overruled its decisions in James v. United States and Sykes v. United States, in which “the Court rejected suggestions by dissenting Justices that the” provision at the center of the case “violates the Constitution’s prohibition of vague criminal laws.”
In the majority’s opinion, Scalia wrote that the case was the first one “in which the Court has received briefing and heard argument from the parties about whether the” provision at the center of the case was unconstitutional – which, he said, means that the Supreme Court is “‘less constrained to follow precedent.’” “Standing by [its prior decisions] would undermine, rather than promote, the goals that stare decisis is meant to serve,” Scalia added.
And on the same day as the court’s ruling in Johnson, Kagan joined Kennedy’s opinion for the majority in Obergefell v. Hodges, which recognized a right to same-sex marriage. That decision expressly overruled Baker v. Nelson, which Kennedy described as “a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.”
The following year, in Hurst v. Florida, Kagan joined a decision by Sotomayor holding that Florida’s capital sentencing scheme, in which the jury renders an “advisory sentence,” but the judge makes the key findings required to impose the death penalty, violates the Sixth Amendment right to a jury trial. In reaching that conclusion, the court overruled the Supreme Court’s earlier decisions in Hildwin v. Florida and Spaziano v. Florida upholding the state’s capital sentencing scheme. The court also rejected the state’s argument that stare decisis required the court to uphold the scheme, calling it “wrong, and irreconcilable with” the court’s decision in Apprendi v. New Jersey, holding that juries must find any facts that increase the penalty for a crime beyond the statutory maximum.
And in 2019’s Herrera v. Wyoming, Kagan joined another Sotomayor decision overruling prior precedent – this time an opinion holding that the hunting right of the Crow Tribe of Indians under an 1868 treaty with the United States had not been extinguished when Wyoming became a state in 1890. Among other things, the majority indicated that it was impossible to reconcile two prior decisions.
In her 2022 appearance at the University of Pennsylvania, Kagan outlined why, in her view, the doctrine of stare decisis is so important. First, she first cited the need for the law to be stable. People rely on the existing law and plan their lives around it, she emphasized. Next, she contended, “judges should be humble” and recognize that other judges have come before them, and that “law develops best when it develops slowly and incrementally.” Third and finally, she suggested, adhering to precedent helps to “prevent the court from becoming politicized.” If new judges join a court and quickly change the law, “it starts not to look like law anymore,” and the court instead begins to look “more like a political institution,” she posited. “And that’s something,” Kagan concluded, “that the courts need to be incredibly cognizant of and wary about.”
Conservative critics have suggested that Kagan’s strong support for stare decisis stems from another motivation: the “desire to prevent an increasingly conservative Supreme Court from overturning precedents she strongly supports.” Regardless of her motivation, however, it is clear that she has made adherence to precedent a bedrock of her jurisprudence.
We will soon learn if this remains the case. In the fall, in Kian v. Florida, the justices will hear oral arguments in the case of a Florida man who was convicted by a six-person jury of working as a chiropractor with a suspended license. Hamed Kian argues that he had a constitutional right to a 12-person jury, and he has asked the court to overrule its 1970 decision in Williams v. Florida, which rejected a challenge to that state’s six-person jury system. If past is prologue, Kagan’s vote could prove harder to secure than Kian might hope.