Sparking speculation that Roe v. Wade may soon face a challenge from conservatives on the Supreme Court, Justice Clarence Thomas encouraged the court to abandon its unquestioning deference to precedent.
In a lengthy opinion, Thomas laid the groundwork for Roe’s repeal with a direct attack on the principle of stare decisis, in which previous Supreme Court decisions that have been upheld are affirmed as law. The conservative judge called on his colleagues to reject “demonstrably erroneous” precedents, which for Thomas would certainly include the 1973 case that established a constitutional right to abortion.
Thomas’s warning shot comes amid a wider push by state legislatures in various states to restrict abortion, as well as fears on the left that a right-ward shift on the Supreme Court could imperil Roe. Thomas also garnered attention last month after penning a blistering opinion comparing abortion to eugenics, leading court watchers to speculate about the future of abortion rights.
Thomas fires oblique shot at Roe
In a ruling on a double jeopardy case Monday, Thomas, who is known for his strict “originalist” views, warned that excessive deference for precedent may allow decisions that were made in error to override the law and the Constitution itself.
The case before the Supreme Court, Gamble v. United States, dealt with the issue of double jeopardy, an ancient common law protection from being charged twice with the same crime. Thomas agreed with the court’s 7-2 decision that a citizen can be charged by the state and federal governments for the same crime, since they are separate entities, without the double jeopardy doctrine being invoked. But in a lengthy concurring opinion, he addressed stare decisis separately.
Thomas argued that stare decisis “elevates demonstrably erroneous decisions — meaning decisions outside the realm of permissible interpretation — over the text of the Constitution and other duly enacted federal law,” in effect giving the Supreme Court an unauthorized power to create law out of thin air that has no basis in the Constitution. Judges should instead stick to the responsibility of ” [exercising the ‘Judicial Power,’ faithfully interpreting the Constitution and the laws enacted by” the other branches of government.
“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,” the justice wrote.
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas added, noting that lower courts should reject “demonstrably erroneous” precedents as well. Thomas did not consider the precedent that citizens can be charged by both the state and federal governments to be “erroneous.”
Thomas noted that stare decisis is an important part of English common law tradition, and that precedent “may remain relevant when it is not demonstrably erroneous,” but added, “we operate in a system of written law in which courts need not — and generally cannot — articulate the law in the first instance.”
Liberals see signs of trouble
Roe v. Wade was later upheld by Planned Parenthood v. Casey. Out of a desire to protect abortion rights, gay marriage and other victories enshrined in law by court precedent, progressives have made respect for stare decisis — particularly in regard to Roe — into a virtual litmus test for judicial nominees.
Thomas’s shot at stare decisis could reasonably be seen as an oblique attack on Roe v. Wade. Thomas’s views on abortion are no secret; he is on record as calling Roe among “the most notoriously incorrect” decisions in Supreme Court history.
Originalists like Thomas have long chafed against liberal interpretations of the Constitution that “invent” rights which are not laid out in the text. The legal basis of Roe is famously sloppy and, for many conservatives, immoral as well as unconstitutional. The Constitution is silent on abortion, but the right was established with a very loose interpretation of the 14th Amendment’s due process clause.
The sense of urgency on the left has only been heightened by efforts in various state legislatures to pass restrictions on abortion, as well as President Donald Trump’s rapid-fire confirmation of conservative judges, including two on the Supreme Court. After years of using the Supreme Court as a bludgeon to enforce their agenda, liberals are increasingly concerned that a more conservative Supreme Court may hew closer to the Constitution, rather than their preferred progressive edicts.
“One can’t ignore the timing of Justice Thomas’s concurring opinion which comes at a moment when we are seeing a coordinated and relentless attack on Roe v. Wade across the country,” said Kristen Clarke, the President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. “The laws that have been adopted in several states violate the Court’s settled precedent in Roe. In his concurring opinion, Justice Thomas has made clear his willingness to reject precedents that he personally deems incorrect, a position that unnecessarily politicizes the Court.”
Abortion battle continues
In another recent opinion that attracted media attention, Thomas warned his colleagues that they had left important questions about abortion unanswered by declining to weigh in on part of an Indiana abortion law. The provision dealt with abortion to select for race, sex, disability, and other immutable characteristics. While Thomas agreed that the Supreme Court made the right decision to let appeals courts weigh in first, he seemed to prep an attack on abortion rights with a lengthy, impassioned opinion arguing against abortion as a potential form of eugenics.
“Given the potential for abortion to become a tool of eugenic manipulation,” Thomas wrote, “the court will soon need to confront the constitutionality of laws like Indiana’s. From the beginning, birth control and abortion were promoted as means of effectuating eugenics.”
For many on the left, Thomas is a troubling figure. The 7o-year-old judge is considered the court’s most conservative, and is known for putting the letter of the Constitution over Supreme Court precedent. Earlier this year, Thomas set off alarm bells when he attacked a Supreme Court decision that protects journalists from libel lawsuits provided they act in good faith, New York v. Sullivan.
In May, the court’s conservative bloc overturned a 1979 precedent on states’ immunity from lawsuits, prompting Justice Stephen Breyer to wonder “which cases the court will overrule next.”
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