THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL.,              

BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting Appenix

Appendix to opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.

burden); Brandenburg v. Ohio, 395 U. S. 444, 447–448 (1969) (per curiam) (holding that mere advocacy of violence is protected by the First Amendment, unless intended to incite it or produce imminent lawlessness, and rejecting the contrary rule in Whitney v. California, 274 U. S. 357 (1927), as having been “thoroughly discredited by later decisions”); Katz v. United States, 389 U. S. 347, 351, 353 (1967) (recognizing that the Fourth Amendment extends to material and communications that a person “seeks to preserve as private,” and rejecting the more limited construction articulated in Olmstead v. United States, 277 U. S. 438 (1928), because “we have since departed from the narrow view on which that decision rested,” and “the underpinnings of Olmstead . . . have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling”); Miranda v. Arizona, 384 U. S. 436, 463–467, 479, n. 48 (1966) (recognizing that the Fifth Amendment requires certain procedural safeguards for custodial interrogation, and rejecting Crooker v. California, 357 U. S. 433 (1958), and Cicenia v. Lagay, 357

U. S. 504 (1958), which had already been undermined by

Escobedo v. Illinois, 378 U. S. 478 (1964)); Malloy v. Hogan, 378 U. S. 1, 6–9 (1964) (explaining that the Fifth Amendment privilege against “self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States,” and rejecting Twining v. New Jersey, 211 U. S. 78 (1908), in light of a “marked shift” in Fifth Amendment precedents that had “necessarily repudiated” the prior decision); Gideon v. Wainwright, 372 U. S. 335, 343–345 (1963) (acknowledging a right to counsel for indigent criminal defendants in state court under the Sixth and Fourteenth Amendments, and overruling the earlier precedent failing to recognize such a right, Betts v. Brady, 316 U. S. 455 (1942));31 Smith v. Allwright, 321 U. S. 649, 659–662

(1944) (recognizing all-white primaries are unconstitutional after reconsidering in light of “the unitary character of the electoral process” recognized in United States v. Classic, 313 U. S. 299 (1941), and overruling Grovey v. Townsend, 295 U. S. 45 (1935)); United States v. Darby, 312 U. S.

100, 115–117 (1941) (recognizing Congress’s Commerce Clause power to regulate employment conditions and explaining as “inescapable” the “conclusion . . . that Hammer

v. Dagenhart, [247 U. S. 251 (1918)],” and its contrary rule had “long since been” overtaken by precedent construing the Commerce Clause power more broadly); Erie R. Co. v. Tompkins, 304 U. S. 64, 78–80 (1938) (applying state substantive law in diversity actions in federal courts and overruling Swift v. Tyson, 16 Pet. 1 (1842), because an intervening decision had “made clear” the “fallacy underlying the rule”).

Additional cases the majority cites involved fundamental factual changes that had undermined the basic premise of the prior precedent. See Citizens United v. Federal Election Comm’n, 558 U. S. 310, 364 (2010) (expanding First Amendment protections for campaign-related speech and citing technological changes that undermined the distinctions of the earlier regime and made workarounds easy, and overruling Austin v. Michigan Chamber of Commerce, 494

U. S. 652 (1990), and partially overruling McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003)); Crawford v. Washington, 541 U. S. 36, 62–65 (2004) (expounding on the Sixth Amendment right to confront witnesses and rejecting the prior framework, based on its practical failing to keep

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31 We have since come to understand Gideon as part of a larger doctrinal shift—already underway at the time of Gideon—where “the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments.” McDonald v. Chicago, 561 U. S. 742, 763 (2010); see also id., at 766.

out core testimonial evidence, and overruling Ohio v. Roberts, 448 U. S. 56 (1980)); Mapp v. Ohio, 367 U. S. 643, 651–

652 (1961) (holding that the exclusionary rule under the Fourth Amendment applies to the States, and overruling the contrary rule of Wolf v. Colorado, 338 U. S. 25 (1949), after considering and rejecting “the current validity of the factual grounds upon which Wolf was based”).

Some cited overrulings involved both significant doctrinal developments and changed facts or understandings that had together undermined a basic premise of the prior decision. See Janus v. State, County, and Municipal Employees, 585 U. S. , , – (2018) (slip op., at 42, 47–49) (holding that requiring public-sector union dues from nonmembers violates the First Amendment, and overruling Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), based on “both factual and legal” developments that had “eroded the decision’s underpinnings and left it an outlier among our First Amendment cases” (internal quotation marks omitted)); Obergefell v. Hodges, 576 U. S. 644, 659–663 (2015) (holding that the Fourteenth Amendment protects the right of same-sex couples to marry in light of doctrinal developments, as well as fundamentally changed social understanding); Lawrence v. Texas, 539 U. S. 558, 572–578 (2003) (overruling Bowers v. Hardwick, 478 U. S. 186 (1986), after finding anti-sodomy laws to be inconsistent with the Fourteenth Amendment in light of developments in the legal doctrine, as well as changed social understanding of sexuality); United States v. Scott, 437 U. S. 82, 101 (1978) (overruling United States v. Jenkins, 420 U. S. 358 (1975), three years after it was decided, because of developments in the Court’s double jeopardy case law, and because intervening practice had shown that government appeals from midtrial dismissals requested by the defendant were practicable, desirable, and consistent with double jeopardy values); Craig v. Boren, 429 U. S. 190, 197–199, 210, n. 23 (1976) (holding

that sex-based classifications are subject to intermediate

Cite as: 597 U. S. (2022) 65

Appendix to opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.

scrutiny under the Fourteenth Amendment’s Equal Protection Clause, including because Reed v. Reed, 404 U. S. 71 (1971), and other equal protection cases and social changes had overtaken any “inconsistent” suggestion in Goesaert v. Cleary, 335 U. S. 464 (1948)); Taylor v. Louisiana, 419 U. S.

522, 535–537 (1975) (recognizing as “a foregone conclusion from the pattern of some of the Court’s cases over the past 30 years, as well as from legislative developments at both federal and state levels,” that women could not be excluded from jury service, and explaining that the prior decision approving such practice, Hoyt v. Florida, 368 U. S. 57 (1961), had been rendered inconsistent with equal protection jurisprudence).

Other overrulings occurred very close in time to the original decision so did not engender substantial reliance and could not be described as having been “embedded” as “part of our national culture.” Dickerson v. United States, 530 U. S. 428, 443 (2000); see Payne v. Tennessee, 501 U. S. 808 (1991) (revising procedural rules of evidence that had barred admission of certain victim-impact evidence during the penalty phase of capital cases, and overruling South Carolina v. Gathers, 490 U. S. 805 (1989), and Booth v. Maryland, 482 U. S. 496 (1987), which had been decided two and four years prior, respectively); Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996) (holding that Congress cannot abrogate state-sovereign immunity under its Article I commerce power, and rejecting the result in Pennsylvania

v. Union Gas Co., 491 U. S. 1 (1989), seven years later; the

decision in Union Gas never garnered a majority); Garcia

v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 531 (1985) (holding that local governments are not constitutionally immune from federal employment laws, and overruling National League of Cities v. Usery, 426 U. S. 833 (1976), after “eight years” of experience under that regime showed Usery’s standard was unworkable and, in practice, undermined the federalism principles the decision sought

The rest of the cited cases were relatively minor in their effect, modifying part or an application of a prior precedent’s test or analysis. See Montejo v. Louisiana, 556 U. S. 778 (2009) (citing workability and practical concerns with additional layers of prophylactic procedural safeguards for defendants’ right to counsel, as had been enshrined in Michigan v. Jackson, 475 U. S. 625 (1986)); Illinois v. Gates, 462 U. S. 213, 227–228 (1983) (replacing a two-pronged test under Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli

v. United States, 393 U. S. 410 (1969), in favor of a traditional totality-of-the-circumstances approach to evaluate probable cause for issuance of a warrant); Wesberry v. Sanders, 376 U. S. 1, 4 (1964), and Baker v. Carr, 369 U. S. 186, 202 (1962) (clarifying that the “political question” passage of the minority opinion in Colegrove v. Green, 328 U. S. 549 (1946), was not controlling law).

In sum, none of the cases the majority cites is analogous to today’s decision to overrule 50and 30-year-old watershed constitutional precedents that remain unweakened by any changes of law or fact.