Clarence Thomas on Stare Decisis

Not so conservative.

Via CNN:

On Friday, Thomas reiterated that he believes Supreme Court justices are obligated to take a fresh look at established precedent and shouldn’t be bound by the judicial doctrine called “stare decisis.” The legal principle is translated as “stand by that which has been decided” and is meant to reinforce stability in the law. Thomas has long been a critic of a strict reading of the doctrine.

“We use stare decisis as a mantra when we don’t want to think,” Thomas said Friday. But he noted that unlike lower courts, the Supreme Court is the “end of the line.” If the justices “don’t take a look at it, who does?” he asked.

Emphasis mine.

So much for slow and steady change and respecting precedents.

And look, I get it: the Court does have the right to overturn itself, but the reality in the context of Roe and Casey is simply a question of having the votes, just like a legislative body, so that the current coalition of Alito, Barrett, Gorsuch, Kavanaugh, and Thomas can do what they prefer to do.

And yet, as James Joyner wrote this morning, Clarence Thomas Worries Respect for Institutions Fading.

Indeed, a couple of months ago he was worrying about the Court being overly politicized.

It is all almost self-parody.

On the issue of respecting precedent, I can only imagine what SCOTUS confirmation hearings are going to be like going forward now that it would appear calling something “settled law” or citing stare decisis is highly unlikely to be a sufficient answer.

FILED UNDER: Law and the Courts, Supreme Court, U.S. Constitution
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Gavin says:

    For a reactionary theocrat, he’s quite the snowflake.

    Thomas’ FedSoc cosplay remains nothing more than bad-faith bullying of an institution to generate the result he wanted. Of course he doesn’t think anyone else should be able to do that – and doesn’t see the hypocrisy.

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  2. JohnSF says:

    Looking at the photograph, rather appears he’s attempting to out-stare decisis.
    (Sorry).(Not sorry)

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  3. Gustopher says:

    On the issue of respecting precedent, I can only imagine what SCOTUS confirmation hearings are going to be like going forward now that it would appear calling something “settled law” or citing stare decisis is highly unlikely to be a sufficient answer.

    Given that justices clearly lie during the hearings, why bother having them?

    We didn’t even have them until the 1900s.

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  4. steve says:

    Since there is essentially no way to punish a judge with a lifetime appointment they really should just lie during their hearings. They have nothing to lose. There is no legitimacy just power.

    Steve

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  5. gVOR08 says:

    It is all almost self-parody.

    Almost? Perhaps unconscious, but definitely self parody.

    All the video I’ve seen lately of confirmations, no one committed perjury. But they lied. Very skillfully, as one would expect from the best lawyers in the country. But nonetheless intended to deceive.

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  6. James Joyner says:

    @Gustopher:

    Given that justices clearly lie during the hearings, why bother having them?

    @steve:

    Since there is essentially no way to punish a judge with a lifetime appointment they really should just lie during their hearings.

    @gVOR08:

    All the video I’ve seen lately of confirmations, no one committed perjury. But they lied.

    There’s a kabuki aspect to the whole thing.

    It’s perfectly reasonable for Senators to ask prospective Justices about their views of the Constitution, the Common Law, Constitutional interpretation and the like and they should expect detailed, thoughtful, honest answers. And, for the most part, I think they get them when asking those questions.

    It’s not reasonable or proper for Senators to grandstand and try to pin down prospective Justices on how they would vote on various hot-button issues that will inevitably come before them. That’s not how an independent judiciary works. But its bad TV to stick to philosophy, so Senators invariably try to get cute. And the nominees get cute right back, trying to appear to answer the questions without actually answering the questions.

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  7. al Ameda says:

    “We use stare decisis as a mantra when we don’t want to think,” Thomas said Friday. But he noted that unlike lower courts, the Supreme Court is the “end of the line.” If the justices “don’t take a look at it, who does?” he asked.

    Disingenuous, to say the least.
    What it boils down to is:
    “When liberals do sh*t like this, it’s bad. When originalists do it, it’s thoughtful and necessary.”

    Can we expect future ‘liberal nominees to the Court to be asked by conservative senators if they believe the (impending) anti-abortion decisoon to be ‘settled law’?

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  8. Jay L Gischer says:

    There is a way to punish Justices – impeachment. But that’s very hard, and probably reserved for “we caught them taking bribes, or committing armed robbery”.

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  9. Jay L Gischer says:

    Brave words from someone who thinks their position is unassailable. I mean, what would he be saying if we swapped the votes of two justices, had a liberal majority, and were thinking about overturning, Heller, Hobby Lobby, Citizens United, or Shelby, all of which are far more recent than Roe, Griswold or even Casey.

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  10. Liberal Capitalist says:

    At this point, it’s all parody.

    Ex: The “non-scalable” fence that went up around teh Supreme Court after the leak pre-announcement…
    https://www.yahoo.com/entertainment/security-fence-erected-us-supreme-210358885.html
    …because there MIGHT be a chance of violent protests.

    That. after having passed a decision to ensure that type of protection would NOT be available …
    https://news.yahoo.com/supreme-court-rules-against-abortion-clinic-buffer-zones-095805330–politics.html
    … to protect women against actual physical violence.

    We have gotten to the point where Conservatives imagine the absolute worst possible things that they can think of from the depths of a depraved mind… immediately blame Democrats for those imaginary thoughts… and then go off and actually commit those actions / crimes themselves.

    What the hell, man?

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  11. Rick DeMent says:

    Sure but every time I hear one of these right wing reactionary Justices talk about “following the constitution” I ponder this question:

    Here is the text of the 14th Sec 1:
    All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    Now tell me, how does a blastocyst or a fetus get rights of any kind under the constitution? They are nether born or naturalized. And why aren’t people like Thomas reading the constitution? I mean it’s right there in plain language who has rights under the constitution. I no of no law passed that says that a blastocyst or a fetus is “subject to the jurisdiction thereof”.

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