Wednesday, 1 Apr 2020

Precedent, Meet Clarence Thomas. You May Not Get Along.

WASHINGTON — Justice Clarence Thomas was busy in February. As usual, he asked no questions during Supreme Court arguments. But he made up for his silence with three opinions in eight days that took issue with some of the court’s most prominent precedents.

He called on Feb. 19 for the court to reconsider New York Times v. Sullivan, the 1964 decision that provided the press with broad First Amendment protections against libel suits brought by public officials. The Sullivan case — and rulings extending it — Justice Thomas wrote, “were policy-driven decisions masquerading as constitutional law.”

The next day, he criticized Roe v. Wade, the 1973 decision that established a constitutional right to abortion, calling it “notoriously incorrect” and the product of misguided efforts to identify and protect fundamental rights under the due process clause of the 14th amendment.

A week later, he expressed skepticism about Gideon v. Wainwright, the 1963 decision that said the Sixth Amendment requires the government to provide lawyers to poor people accused of serious crimes. Justice Thomas wrote that the Sixth Amendment, as understood by those who drafted and ratified it, guaranteed only the right to hire a lawyer.

The opinions underscored two distinctive aspects of Justice Thomas’s jurisprudence. He tries to unearth the original meaning of the Constitution, and he has no use for precedents that have veered from that original understanding.

At the Federalist Society’s annual dinner in 2013, he was asked about the doctrine of stare decisis, which is legal shorthand for respect for precedent and Latin for “to stand by things decided.”

“Stare decisis doesn’t hold much force for you?” Judge Diane S. Sykes of the United States Court of Appeals for the Seventh Circuit asked him during a public conversation at the dinner.

“Oh, it sure does,” Justice Thomas responded. “But not enough to keep me from going to the Constitution.”

According to data gathered by Stephen L. Wasby, an emeritus professor of political science at the University at Albany, Justice Thomas has written more than 250 concurring or dissenting opinions seriously questioning precedents, calling for their reconsideration or suggesting that they be overruled.

Almost one-third of the opinions concerned the rights of criminal defendants, Professor Wasby found, while others called for a fresh look at decisions on issues such as free speech, religion, voting, the separation of powers and federalism.

In a 2007 essay, Tom Goldstein, a prominent Supreme Court litigator and a co-founder of Scotusblog, wrote that “Justice Thomas’s extreme view of stare decisis has three features that distinguish him from the rest of the court.”

The first is “unflinching” honesty: “If he thinks the old cases should be discarded, he says so.”

The second is intellectual ambition: “He is thinking big and tackling the serious questions in constitutional law to which the court has not given a fresh look in decades.”

The third is his attitude toward precedent in constitutional cases: “He does not give stare decisis any weight.”

That last point is not in dispute. Justice Antonin Scalia, who died in 2016, had a blunt assessment of Justice Thomas’s approach to precedent. “He does not believe in stare decisis, period,” Justice Scalia told one of Justice Thomas’s biographers.

Josh Blackman, a professor at South Texas College of Law Houston, said Justice Thomas’s statements are often addressed to potential litigants.

“Justice Thomas, more than any other justice, is willing to revisit and reverse old precedents that are inconsistent with the Constitution’s original meaning,” Professor Blackman said. “However, he will not reverse an old precedent unless the parties raise the argument in what he deems an ‘appropriate case.’ Therefore, he will often ask the parties to raise the argument in a future case.”

Justice Thomas uses that phrase — “in an appropriate case” — to invite challenges to precedents he considers misguided. In February’s libel opinion, for instance, he said he was writing “to explain why, in an appropriate case, we should reconsider” the Sullivan case and decisions that have built on it.

In a blog post about the 2013 Federalist Society dinner, David Lat, the founding editor of the legal website Above the Law, jokingly wrote that Justice Thomas must have a shortcut on his computer that saves him a few keystrokes whenever he wants to call for reconsideration of a precedent “in an appropriate case.”

Justice Thomas’s views can seem idiosyncratic and therefore inconsequential. He often writes only for himself. No other justice, for instance, joined his libel opinion.

But there is little question that calls for reconsideration of precedents can have an effect. They embolden litigants and seem to figure in the court’s decisions to agree to hear cases.

In the current term alone, the Supreme Court agreed to re-examine at least three precedents after Justice Thomas, along with other members of the court, called for their reconsideration.

One of the cases concerns procedures for suing in federal court over the government’s seizure of property by eminent domain. In 2005, Justice Thomas joined an opinion calling for reconsideration of the governing precedent “in an appropriate case.”

The court is also considering whether to overrule decisions allowing the same crimes to be prosecuted separately in state and federal courts. In 2016, Justice Thomas joined an opinion calling for “fresh examination” of the question “in an appropriate case.”

Later this month, the court will hear arguments about whether to overrule two important administrative law decisions that generally require judges to defer to agencies’ interpretations of their own regulations.

In 2016, dissenting from the court’s decision not to hear an earlier case on the issue, Justice Thomas expressed frustration.

“Any reader of this court’s opinions should think that the doctrine is on its last gasp,” he wrote. “Members of this court have repeatedly called for its reconsideration in an appropriate case.”

Follow Adam Liptak on Twitter: @adamliptak.

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