Supreme Court justice Clarence Thomas, who this weekend will mark 30 years on the Court, has little patience for precedent veneration. No idol of lawyerly adoration is safe in his chambers. He once called upon his colleagues to reconsider the holding of Calder v. Bull, a case that the Supreme Court decided in 1798. As he often takes care to explain in his lucid opinions, the Court’s job is to be faithful to the Constitution and to the law, not to its own decisions.
Lawyers who are invested in particular precedents, or in judicial supremacy generally, sometimes clutch their pearls when Thomas questions the Court’s prior decisions. Never are pearls more in danger of being snatched from stiffened necks than when Thomas mentions one precedent in particular, Roe v. Wade. His willingness to criticize the Court’s abortion precedents is often the subtext when discussion turns to the senior justice’s jurisprudence. The Court is poised to discuss those precedents this term as it deliberates in the case Dobbs v. Jackson Women’s Health Organization. Justice Thomas has done more than any other justice to make it plausible that the Court could conduct a critical examination of Roe in the Dobbs case.
Even lawyers who favor originalist methods of interpreting constitutions and laws have criticized Thomas for his thin theory of stare decisis, the legal doctrine that like cases should be decided alike. Many (though not all) of his critics take long-standing precedents to be “settled law,” a phrase one often hears used to describe badly reasoned decisions that the Court refuses to reconsider. But to speak of a judicial decision as law is to distort the public’s understanding of law and judicial power.
That distortion can be dangerous. When a court produces a string of unlawful decisions, the mistake of confusing precedents with law can be used for ideological ends to undermine the rule of law. Legal elites have blindly accepted the authority of wrong decisions throughout the Supreme Court’s history. When the Court ruled in 1857 that black Americans cannot be citizens, and in 1927 that “feeble minded” Americans can be deprived of their bodily liberty without due process of law, and in 1944 that Japanese Americans can be denied equal protection of the law, plenty of American lawyers were content to mouth, Thus saith the Court, ignoring dissenting opinions and contemporary critics who demonstrated at the time that those decisions were contrary to the law.
….In 2019, Thomas wrote a concurring opinion in the case Gamble v. United States in order to explain how “the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty.” When the Court “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 yields to the temptation “to confuse our own preferences with the requirements of the law.” To adhere to a “demonstrably erroneous precedent” is to exercise a power that the Court does not have. “A demonstrably incorrect judicial decision . . . is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power….”
The above comes from an Oct. 22 article in National Review.