In a concurring opinion in the Gamble v. United States decision released on Monday, June 17, Justice Clarence Thomas discussed at some length the proper role of the doctrine stare decisis, in what many court-watchers believe may be an attempt to prepare the court to overturn precedents such as the 1973 Roe v. Wade decision that inserted a “right” to abortion into the U.S. Constitution.

Justice Thomas opined that the current application of stare decisis “elevates demonstrably erroneous decisions” over the actual text of the Constitution and that overruling those errant decisions would return stare decisis to its proper role.

Justice Thomas wrote:

In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions-meaning decisions outside the realm of permissible interpretation-over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements of the law”. . . and the Court’s stare decisis doc­trine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstra­bly incorrect precedents. By applying demonstrably erro­neous precedent – instead of the relevant law’s text as the Court is particularly prone to do when expanding federal power or crafting new individual rights – the Court exer­cises “force” and “will,” two attributes the People did not give it. . .We should restore our stare decisis jurisprudence to ensure that we exercise “mer[e] judgment,” . . . which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.

– from a June 18 email sent by Operation Rescue