Associate Justice Clarence Thomas made an interesting comment this weekend about the hold of precedent on the Court. After denouncing the recent leak of the draft opinion that would overturn Roe v. Wade as “an infidelity,” Thomas dismissed the reliance on the principle of stare decisis, or the respect for precedent. That was one of the central arguments in favor of preserving Roe. Thomas, however, surprised many by dismissing the principle as the last line of defense for those without an argument on the merits.
Thomas told an audience that “I always say that when someone uses stare decisis that means they’re out of arguments. Now they’re just waving the white flag. And I just keep going.”
The comment quickly lit up the lines of law professors, including my own mailbox. I have long questioned the weight given stare decisis in constitutional cases. If a justice does not believe that the right of abortion is well-founded in the Constitution, I do not believe that this principle should compel him or her to vote to preserve that erroneous precedent.
The Court has long embraced the “doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.” To that end, it has insisted on a “special reason over and above the belief that a prior case was wrongly decided” before rejecting it as a binding precedent. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864 (1992). That includes various factors to be weighed including the reliance on the precedent.
Justice Thomas has previously voiced doubts over this approach. In Gamble v. United States, he wrote a concurrence that included this passage:
In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.
That should not be treated as a heretical or radical position.
As I have previously noted, justices take an oath to uphold the Constitution and to “faithfully and impartially” interpret the law. It is bizarre to argue that they should vote for some interpretation of the Constitution that they believe is wrong and unfounded just to preserve precedent. If that view had prevailed in the past, Brown versus Board of Education would have upheld the racist precepts of “separate but equal” in Plessy v. Ferguson. When it comes to fundamental rights, justices should faithfully interpret the Constitution.
Indeed, I do not believe for a second that, if Dobbs overturns Roe, that liberal justices would hesitate to overturn it in a year, ten years, or a 100 years as wrongly decided.
There may be a greater hold of precedent in statutory interpretations (since Congress can address erroneous or conflicting interpretations). However, in the interpretation of the Constitution, justices are fulfilling an oath to “support and defend the Constitution of the United States.” Stare decisis may protect the Court as an institution from public criticism, but that should not override the duty to correctly and faithfully interpret the Constitution.