The long reign of unquestioned “stare decisis,” or blind deference to legal precedent, is over.
Supreme Court Justice Clarence Thomas challenged the long-standing doctrine in a 17-page concurring opinion on Monday, arguing that the subjective manner in which the courts evaluate precedent has become corrupted by partisanship. Thomas’ break with enduring legal tradition has prompted some legal scholars to conclude that he is “laying groundwork for a Roe v. Wade reversal” — seeking to overturn the 1973 landmark case that legalized abortion.
Revolutionary ruling
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote. “This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law—including our own precedents. That the Constitution outranks other sources of law is inherent in its nature.”
Thomas criticized the “multi-factor approach” to overturning precedent in a court case that, on its surface, had little to do with this legal doctrine. Gamble v. U.S. was a case dealing with the double jeopardy clause of the Fifth Amendment which states that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
In a 7-2 majority, the Supreme Court declined to overturn the “longstanding dual-sovereignty doctrine” which allows individuals to be prosecuted by both state and federal governments. According to Thomas, who initially harbored “skepticism” with the government’s position, “where there are two sovereigns, there are two laws and two ‘offences,’” leaving citizens subject to punishment from multiple jurisdictions.
Legislating from the bench
After clearing that up, Thomas turned his attention towards the “proper role of the doctrine of stare decisis.” He insisted that the high court 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,” Thomas observed.
The Supreme Court currently balances several factors when judging whether to overturn a precedent. “Among these factors are the ‘workability’ of the standard, ‘the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned,’” Thomas wrote.
This latter standard, allowing jurists to evaluate if a decision is “well reasoned,” opens the door to partisanship and “provides a ready means of justifying whatever result five Members of the Court seek to achieve,” Thomas wrote. “The Court’s multifactor balancing test for invoking stare decisis has resulted in policy-driven, ‘arbitrary discretion,’” he added.
Thomas’s nonconformist opinion is bad news for Roe v. Wade. He even cited Planned Parenthood of Southeastern Pa. v. Casey, which serves as a modern affirmation of Roe v. Wade’s principles, as an example of justices using the precedent evaluation process to force a political outcome. “[T]he shared theme,” Thomas reasoned, “is the need for a ‘special reason over and above the belief that a prior case was wrongly decided’ to overrule a bad precedent.”
“Simple rule”
Thomas’s “simple rule” is that when a precedent is “demonstrably erroneous,” it should be overturned. Judges should look to the guiding principles of the Constitution when making these decisions, not the fallible and arbitrary precedent handed down by other judges.
“The Constitution tasks the political branches—not the Judiciary—with systematically developing the laws that govern our society,” he wrote. “The Court’s role, by contrast, is to exercise the ‘judicial Power,’ faithfully interpreting the Constitution and the laws enacted by those branches.”
While he may or may not prevail in changing the way that judges treat precedent, the longest-serving justice on the Supreme Court is establishing that it’s a concept open to debate, in contrast to its unquestioned standing for the last few decades. This could revolutionize the way that judges look at case law and challenge long-established statutes that were once considered legally immutable.
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