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by Bill Fortenberry

It is common today to hear Supreme Court opinions referred to as “settled law,” but is that really what they are? Of course, most of those reading this would say that the Supreme Court does not have the power to make law, but does the Court have the power to determine which interpretation of the law everyone must follow? This interpretation of the law by the Supreme Court is what is often meant when people use the term “settled law,” but that term is a complete misnomer.

The term “settled law” is actually a carryover from British courts at the time of the Revolution, and it was used primarily as a reference to those portions of the common law which had been adjudicated in the courts. This usage can be seen in the 1874 edition of the Albany Law Journal which contains this statement:



“Though the common law of England at the time of the revolution was adopted by us, none but the plainest principles were considered to be settled law until passed upon by the courts.”

This demonstrates that the concept of settled law is a part of the branch of law known as common law, but what does that tell us about the use of this term in the context of the Supreme Court in America?

Quite simply, it tells us that Supreme Court opinions do not establish settled law. Why not? Only the states can determine what is and what is not part of the common law. The federal government does not have a common law; it only has statutory law. This was expressly stated by the Supreme Court itself in Erie Railroad Co. v. Tompkins where the Court declared unequivocally:

“There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State, whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.”

The concept of settled law has no application to federal laws because the federal government does not have any common law to be settled by the courts. Only the states can have settled law within their various common law jurisdictions. To speak of settled law on a federal level is literally nonsense.

But if Supreme Court opinions do not establish settled laws, what exactly do they do?

Again, the answer is very simple. Supreme Court opinions tell the parties to a particular case (the plaintiffs and the defendants) how the law applies to their particular situation. That’s it. The Court has no power to give its rulings any greater influence than that. Each individual determination by the Court applies only to the particular situation and to the particular parties that were before the Court at the time that they gave their opinion.

In support of this conclusion, the Supreme Court itself declared in Martin v. Wilks that:

“A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.”

And in Hansberry v. Lee, the Court said:

“It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. A judgment rendered in such circumstances is not entitled to the full faith and credit which the Constitution and statute of the United States prescribe; and judicial action enforcing it against the person or property of the absent party is not that due process which the Fifth and Fourteenth Amendments require.”

And in Parklane Hosiery Co. v. Shore, the Court proclaimed that:

“It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.”

There are many additional cases which could be cited as well. Over and over and over again, our Supreme Court has recognized that the lack of a federal common law prevents the Court from establishing settled law and that no opinion from the Court is binding on anyone other than those who were given an opportunity to defend themselves before the Court. Though many people still refer to Court opinions as “settled law,” the simple fact remains that the Supreme Court has no lawmaking power because we have no common law on the federal level of our government.

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