What did Justice Thomas say about abiding by Supreme Court precedent?
“I seem to recall Justice Clarence Thomas wrote an opinion perhaps six months ago indicating he didn’t believe that precedent from previous legal decisions should be considered, or binding, in current decisions. Is my recollection correct, and if so, what exactly did he say?” — R.
Hi R.,
I’m not sure what opinion you’re thinking of. But Thomas has long stood out for being willing — indeed, eager — to discard precedents he thinks are wrong. His solo dissent last week in Hamm v. Smith was only one of the latest examples: He called for overturning Atkins v. Virginia, the 2002 precedent that bars executing intellectually disabled people.
Thomas doesn’t make these calls randomly without attempting to justify them. But he feels less constrained than other justices. He “doesn’t believe in stare decisis, period,” the late Justice Antonin Scalia reportedly told Thomas’ biographer. Stare decisis is the Latin term used by lawyers and judges for respecting precedent. Scalia, a longtime colleague and ideological ally of Thomas’, was further quoted as saying that “if a constitutional line of authority is wrong, he would say, ‘Let’s get it right.’”
That view was on display in Thomas’ Smith dissent last week. The justice wrote that Atkins “should be overruled” because it “has bred only confusion and absurdity” and “nothing in the text or history of the Constitution supports it.”
He has made his stance clear in remarks off the bench, too. Appearing last fall at the Catholic University of America’s Center on the Constitution and the Catholic Intellectual Tradition, he said, “I don’t think that I have the gospel and I don’t think that any of these cases that have been decided are the gospel. And I do give respect to precedent, but the precedent should be respectful of our legal tradition and our country and our laws.”
During that appearance at Catholic University, Thomas cited the court’s infamous 1896 ruling in Plessy v. Ferguson, which approved of racial segregation and wasn’t abandoned by the court until the 1950s. Thomas asked if the court “should have just followed it because it was already decided?” Or, he went on, was it “so wrong that it needs to go?”
Examples of this approach abound in his opinions. Another came in the 2019 case Gamble v. United States, where the court declined to overturn a longstanding double jeopardy rule. Thomas joined the decision authored by Justice Samuel Alito, but he also wrote a separate concurring opinion to spotlight his argument that the court’s tendency to cling to precedent “elevates demonstrably erroneous decisions — meaning decisions outside the realm of permissible interpretation — over the text of the Constitution and other duly enacted federal law.” He urged his colleagues to simply find “the correct, original meaning of the laws we are charged with applying.” Anything less, he wrote, “invites arbitrariness into judging.” None of the other justices joined his Gamble concurrence.
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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