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I know there have been a number of instances where the United States Supreme Court has basically 'changed its mind' and ruled in a manner counter to a previous Supreme Court ruling. The most obvious being Brown v. Board of Education.

Many of these cases are clearly examples of society moving on, for instance overruling decisions that a modern US person would likely have viewed as racist, sexist, or otherwise clearly 'wrong' by modern sensibilities; though that by no means applies to all of them.

I'm wondering though if there has ever been a case of a the court changing its mind twice. That is to say that it originally ruled in favor of some concept X, later ruled against X, and still later overturned the second ruling by again ruling in favor of X?

What keeps this situation from being more common? I know that Supreme Court Justices tend to be loath to overturn previous rulings. Not only has that happened, but given the highly polarized nature of American politics and the tendency of political parties to do everything they can to overturn any decisions made by the opposite party when they gain a majority, I'm a little surprised that Justices aren't more prone to the same, regardless of the general stigma against changing old precedents.

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    I think it might help to clarify what counts as the "same topic." For example, does it count if the Supreme Court struck down minimum wage laws, then upheld them, then struck it down in one application, then overturned that decision? Does it still count even though the decisions were made on different constitutional grounds? – Avi Nov 1 '18 at 15:47
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    While the title seems to be about altering precedent, you seem to indicate you're looking for situations where a full reversal of position happens. Can you clarify whether you are seeking specific, about-face reversals, or simply alterations (in line with hszmv's current answer)? It seems to me the former is a more interesting, worthwhile question, while the latter happens on a fairly regular basis. – TylerH Nov 1 '18 at 17:59
  • @TylerH: Brandenburg isn't an alteration of Schenk. Schenk explicitly bans any discussion of violent overthrow of the government, where as Brandenburg allows for some discussion about the matter. – hszmv Nov 1 '18 at 19:14
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    Having just reread the first paragraph, SCOTUS typically doesn't get politically heated in their discussions as the other two branches. Sure, they do not disagree all the time, but 5-4 decisions are as common as you may have been lead to believe (They just get more attention as they tend to be VERY polarized). Ginsberg famously rarely joined a Majority with the late Antony Scalia, but they were very very close. One of the ways they quasi-enforce this is that they always have lunch together, and the newest Justice sets the menus for the cafeteria as part of his or her duties...+ – hszmv Nov 1 '18 at 19:28
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    +The reasoning behind this is that it forces the new guy to reach out to the other justices and discuss something that all nine will never agree on, but doesn't really matter in the long run. From my understanding, after an incident when Ginsberg fell asleep during a State of the Union Address, they also have dinner together with each other prior to the speech (and Ginsberg is easily drunk under the table... she attributed the faux pas to having too much wine another Justice had bought). Not trying to pick on her... she's just really good for these types of stories. – hszmv Nov 1 '18 at 19:32
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Yes. It has happened.

This is rare, but it happens.

One of the most recent examples involves sales tax jurisdiction.

In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the U.S. Supreme Court changed prior law to prohibit sales taxation imposed on sellers of goods who have no offices for the conduct of business in the taxing state who deliver their goods via common carriers (e.g. U.S. mail, UPS, Federal Express, etc.).

Quill Corp. hardened the rule of the case National Bellas Hess v. Department of Revenue of Illinois, 386 U.S. 753 (1967), in which the Supreme Court ruled that a mail order reseller was not required to collect sales tax unless it had some physical contact with the state. The Court in National Bellas Hess recounted some key cases in place before it was decided:

In applying these principles the Court has upheld the power of a State to impose liability upon an out-of-state seller to collect a local use tax in a variety of circumstances. Where the sales were arranged by local agents in the taxing State, we have upheld such power. Felt & Tarrant Mfg. Co. v. Gallagher, 306 U.S. 62 , 59 S.Ct. 376; General Trading Co. v. State Tax Comm'n, 322 U.S. 335 , 64 S.Ct. 1028. We have reached the same result where the mail order seller maintained local retail stores. Nelson v. Sears, Roebuck & Co., 312 U.S. 359 , 61 S.Ct. 58; Nelson v. Montgomery Ward & Co., 312 U.S. 373 , 61 S.Ct. 593.10 In those situations the out-of-state seller was plainly accorded the protection and services of the taxing State. The case in this Court which represents the furthest constitutional reach to date of a State's power to deputize an out-of-state retailer as its collection agent for a use tax is Scripto, Inc. v. Carson, 362 U.S. 207 , 80 S.Ct. 619, 4 L.Ed.2d 660. There we held that Florida could constitutionally impose upon a Georgia seller the duty of collecting a state use tax upon the sale of goods shipped to customers in Florida. In that case the seller had '10 wholesalers, jobbers, or 'salesmen' conducting continuous local solicitation in Florida and forwarding the resulting orders [386 U.S. 753, 758] from that State to Atlanta for shipment of the ordered goods.' 362 U.S., at 211 , 80 S.Ct., at 621.

It looked very likely prior to National Bellas Hess, that intentionally shipping goods to and advertising in a state would have subjected it to sales tax liability (something called "purposeful availment"), by analogy to other personal jurisdiction cases. In other areas of law the trend of the cases allowed a state to assert jurisdiction over someone outside the sate for any act directed intentionally towards a state, which a sale of goods for delivery in a state would include. This principal was eventually articulated directly in the personal jurisdiction context. See, e.g. World-Wide Volkswagen Corp., 444 U.S. 286 (1980), and there had been every indication prior to National Bellas Hess that that was where it was going with the sales tax cases as well.

In South Dakota v. Wayfair, Inc. (U.S. 2018), the U.S. Supreme Court overruled Quill and Bellas and reverted the law to its pre-Bellas state. It noted its ruling for example, in a pre-Bellas case that:

[B]usiness “is in no position to found a constitutional right . . . on the practical opportunities for tax avoidance,” Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 366.

The pre-Bellas rule continued in place for taxes other than sales taxes. For example, the U.S. Supreme Court held that “interstate commerce may be required to pay its fair share of state taxes.” D. H. Holmes Co. v. McNamara, 486 U. S. 24, 31 (1988). In Wayfair, the U.S. Supreme Court noted of the clearest indications of the pre-Bellas rule in cases where the U.S. Supreme Court held that:

“[t]he imposition on the seller of the duty to insure collection of the tax from the purchaser does not violate the [C]ommerce [C]lause.” McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 50, n. 9 (1940). It is a “‘familiar and sanctioned device.’” Scripto, Inc. v. Carson, 362 U. S. 207, 212 (1960).

Why Is This Rare?

What keeps this situation from being more common? . . . given the highly polarized nature of American politics and the tendency of political parties to do everything they can to overturn any decisions made by the opposite party when they gain a majority I'm a little surprised that Justices aren't more prone to the same, regardless of the general stigma against changing old precedents.

While there is intense partisan conflict in the U.S., most of that conflict is of one party relative to the other on the liberal-conservative scale, and not something absolute.

For example, while Loving v. Virginia (U.S. 1967) (legalizing interracial marriage) took a position squarely opposed by conservatives at the time and one that even Martin Luther King, Jr. was reluctant to openly push and many liberals were leery of, at the time, by the 1980s there were formerly segregationist Senators in Congress who had staff members who were in interracial marriages and the rightness of the legality of interracial marriage was universally conceded.

Essentially the same people were pro- and anti- legislation and legal action to reduce racial discrimination in the 1980s as in 1967, but the goal posts had moved.

In part, this is because a binding U.S. Supreme Court opinion has a strong tendency to change conventional wisdom and beliefs among the entire populace except in rare cases (e.g. abortion). And, in part, this is because notable U.S. Supreme Court rulings are usually lagging indicators of social and economic trends that are already well underway when they are decided.

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  • That is two rulings, was there rulings, but there would need to be 3 to meet the situation I described. Had the supreme court made a ruling about taxes prior to 1992 that the latest case was reverting back to? – dsollen Nov 1 '18 at 17:20
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    @dollen Yes. There were rulings prior to 1992 by the U.S. regarding the scope of a state's taxing jurisdiction, but, because they involve a variety of cases, rather than one seminal case, it is not quite as easy to summarize. – ohwilleke Nov 1 '18 at 17:25
  • @Greek-Area51Proposal As the OP notes, while overruling a prior SCOTUS decision isn't terribly unusual (Wikipedia notes roughly 100 times that this has happened), overruling a prior SCOTUS decision that overruled a prior SCOTUS decisions is rare. Almost all of the overruling SCOTUS cases listed by Wikipedia are still good law. – ohwilleke Nov 2 '18 at 13:08
  • Comments are not for extended discussion; this conversation has been moved to chat. – Sam I am says Reinstate Monica Nov 4 '18 at 16:38
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United States free speech jurisprudence originally used the "bad tendency" test to determine unprotected speech (i.e. restrictions on free speech) until Schenk v. United States, which amended the jurisprudence to the "clear and present danger" test, which required that the speech be clear on the action and the action must be dangerous. This was further amended in Brandenburg v. Ohio, which revised the test again to its current "imminent lawless action" test, which requires that some definite time component be attached to an advocacy for an illegal action (basically, I can say "Stealing should be allowed" which holds no lawless action, as I am advocating for the crime to be legalized).

Additionally, other changes have come down the works to refine previous discrepancies; there are some legal scholars that question if the "fighting words" doctrine is even a thing, as there has been no case that has upheld it since the original Chaplinsky v. New Hampshire decision, which introduced it. Since then, it has been significantly narrowed in scope by Street v. New York, Cohen v. California, R.A.V. v. City of Saint Paul, and Snyder v. Phelps).

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Justice Kennedy argued in his dissent to Steinberg v. Carhart (2000) that the opinion reflected a curtailment of the state of Nebraska's constitutional authority to ban certain kinds of abortion, provided that the requirements of existing precedent were satisfied.

The existing precedent had been defined according to viability since Planned Parenthood v. Casey (1992), a modification of the "trimester framework" set at Roe v. Wade (1973) and Doe v. Bolton (1973).

So the Supreme Court set a precedent at 1973, which was altered in 1992, and again in 2000.

Ref: https://en.wikipedia.org/wiki/Roe_v._Wade

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See Wikipedia's List of overruled United States Supreme Court decisions.

Can some computer programmer calculate the time difference between the overruled and overruling decisions? I've always been curious to see the ones with the shortest precedent duration, like (as listed on the aforementioned Wikipedia page) West Virginia State Board of Education v. Barnette (1943) that overruled Minersville School District v. Gobitis (1940). This pair is noteworthy as the same 9 justices heard both cases, though Stone was appointed CJ in 1943. Their Wikipedia pages explain the reasons for this reversal.

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    That doesn't address the OP's question, which was specifically about precedents which were re-reversed. – Sneftel Nov 2 '18 at 14:38
  • The question is about double overruling. – Mark Nov 2 '18 at 20:18
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    @Mark within which the list contains numerous examples. – user64742 Nov 2 '18 at 23:08
  • @TheGreatDuck, could you point a few out? I'm not seeing any time where a case appears in both the "overruling" and "overruled" columns. – Mark Nov 2 '18 at 23:14
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    @Mark "same topic" wouldn't be "same case". I'm just saying that perusal of such a list should show examples. I'm not at all claiming I actually see them. I'm merely stating that this is relevant to the question and does provide the OP with the resource they are looking for. – user64742 Nov 2 '18 at 23:42

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