Clarence Thomas: “When Someone Uses Stare Decisis that Means They’re Out of Arguments”

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.

126 thoughts on “Clarence Thomas: “When Someone Uses Stare Decisis that Means They’re Out of Arguments””

  1. On the left, the revolution always eats its own… their children are just the appetizer.

  2. Gotta love it, turning the tables, from one black woman to another.

    https://www.dailymail.co.uk/news/article-10816277/Candace-Owens-releases-footage-showing-outside-BLM-founder-Patrisse-Cullors-home.html

    BLM co-founder tearfully claims that she is being harassed by Candace Owens – who calmly asks to speak to her outside her $1.4 million home after activist admitted she LIED when she denied using group’s $6m LA property ONLY for official business

  3. Thomas demonstrated terrible judgment by choosing to appear with the torture memo author, John Yoo.

    Thomas said both that “you can’t have a civil society, a free society without a stable legal system” and also “when someone uses stare decisis, that means they’re out of arguments,” apparently not understanding the role of precedent in creating a stable legal system.

    Roe and Casey were not “demonstrably incorrect judicial decisions.”

    1. “Torture memo author?” John Yoo, as an attorney at DOJ, may be asked to prepare memoranda outlining arguments supporting and in opposition to the Chief Executive’s proposed (or desired) policies. That doesn’t mean John Yoo thinks “torture” is a nifty idea.

      1. Yes, torture memo author.

        If the President asks a DOJ attorney to justify torture, the attorney’s response should be: that’s torture, and it’s contrary to the Geneva Convention, not “here’s a way to justify it.” Torture is immoral, it results in untrustworthy intel, it gives enemies a recruiting tool, … there are a slew of reasons to reject it.

        1. : that’s torture, and it’s contrary to the Geneva Convention, not “here’s a way to justify it

          You are clueless about how the world works.

          In court, a lawyer just cant say. “That’s illegal”. They need the the specific tenets of the law to defend the conclusion. Writing The contrary opinion, hones those arguments.

          It is as common as grass in parks.

        2. “ Yes, torture memo author.”

          Anti-Asian hate speech and violent crime is a classic tell of the Left

      2. One of the problems with the issue of torture is pretending the issue is absolute.

        In GENERAL torture is not effective.

        That is NOT the same as it is NEVER effective.

        The Bush administration used Torture under conditions where it could not be justified.

        There are likely few it can. But that is not none.

    2. In your opinion, Roe and Casey were not “demonstrably incorrect judicial decisions.” That is hardly a universally held view. Even the RBG, the goddess of the left, didn’t think that of Roe. Murdering children in the womb would still be indefensible, even if such a right were to be found in the Constitution.

      1. I dare you to quote RBG saying that Roe and Casey were “demonstrably incorrect judicial decisions.”

        You won’t, because you cannot. You may try to move the goalposts and substitute something inequivalent that she said.

        Here are some things she said:
        “individual privacy with respect to procreation and intimate personal relations is a right firmly embedded in this nation’s tradition and in the precedents of this Court.”
        “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
        “Roe v. Wade, I should be very clear—I think the result was absolutely right.”

        1. ATS, you are more interested in fighting than thinking. You are limited to unidimensional ideas and cannot understand the nuances and reasoning of Ginsberg’s legal claims regarding Roe. You are ignorant. You argue with those on the right with a substantial legal agreement with Ginsberg on Roe. You are blind to what others are saying because you only want to listen to yourself and never think about what others say.

          As I have said many times, you can link, quote, and make arguments based on paraphrasing what others have said. What you can’t do is think.

  4. Stare decisis is a principle of moderation, deference, perhaps, on one hand, and an argument from authority on the other.

  5. Since Thomas finds little value in stare decisis, can we assume that he will vote to strike down affirmative action in college admissions in the upcoming Harvard case? (Even though he benefited from AA himself?)

    1. OMG! Affirmative action unconstitutional? You betcha!

      How about the entire communist American welfare state?

      None of it is constitutional; freedom, free enterprise, free markets, privacy and absolute, inviolable private property, etc. are.

      Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, redistribution of wealth or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use.

      Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.

      The entire communistic American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

    2. Since Thomas finds little value in stare decisis, can we assume that he will vote to strike down affirmative action in college admissions

      Your raw ignorance of Thomas is astounding. Casual observers know exactly how Justice Thomas feels, and voted, concerning Affirmative.

      “But Justice Clarence Thomas, who dissented in the Grutter decision that was issued a decade ago Sunday, used his concurring opinion as an opportunity to argue against the concept of affirmative action entirely, which he calls a form of “racial discrimination.”

  6. Where’s the leaker how are they being dealt with? Continued leaking from either side does nothing to provide confidence in our system. Something should have been done long ago to prevent leak’s from any department in government. Let the decision be announced either way if Roe holds so be it, if not let the people in the states decide.

    1. If the leaker does not come forward then all of the law clerks should be fired and replaced. I am sure there is a line waiting for such a position.

  7. “MY BODY, MY CHOICE!”

    – Embryo/Fetus In Utero
    ___________________

    “I AM A VERY YOUNG AMERICAN.”

    – Embryo/Fetus In Utero

  8. Dear Clarence,

    “It’s the [“manifest tenor” of the Constitution], stupid!”

    – James Carville
    _____________

    The singular American failure has been and remains the Supreme Court.

    The Constitution and American freedom persisted for only 71 years.

    Anti-constitution, anti-American, subversive of the Constitution, “Crazy Abe” Lincoln led to the demise of American fundamental law, and must have been struck down, impeached and removed from office at the first sign of the outrageously unconstitutional war against a sovereign foreign nation, which would have precluded the multiple subsequent violations of the Constitution he committed, such as denial of fully constitutional secession, the suspension of habeas corpus, denial of the freedom of thought, speech and assembly, demolition of printing presses, imprisonment of political opponents, illegal issuance of a “proclamation” without any authority, confiscation of private property, dereliction and failure to deport illegal aliens per contemporary immigration law, vicious crimes against humanity in Sherman’s “March to the Sea,” etc., etc., etc. America and constitutional freedom would have been saved and a different, licit and constitutional resolution to slavery would have inevitably been discovered and implemented. Advocacy, boycotts, divestiture, etc. would have ultimately compelled southern Confederate states to return to the United States.

    “Crazy Abe” sacrificed the Constitution for what turns out to have been merely a significant change in labor status, and moved America in the direction of the now extant central planning, control of the means of production, wealth redistribution and social engineering, in the direction of communism.

    Freedom for slaves was obviously not an overwhelming and compelling impetus, as not one of them returned home and repatriated himself, as 99% of captive abductees do, and as the Israelite slaves who left Egypt upon the issuance of their release papers did.

    Karl Marx was so pleased with Lincoln’s performance, he sent a letter of congratulation and commendation to “Crazy Abe” for his effort to effect “…the reconstruction of a social world.” Hence, the unconstitutional and still illegitimate “Reconstruction Amendments.”

    Subsequent acts to nullify and void the Constitution and Bill of Rights, and to impose communism on America must have been impeached, removed and severely penalized, from progressives progressing toward communism, through “New Deals” of unconstitutionally redistributed wealth along with socially engineered suppression and oppression of free Americans, and the Great Society, concluding in antithetical and unconstitutional welfare healthcare through charity Obamacare (one of many efforts by Obama to ignore, void and nullify the literal “manifest tenor” of the U.S. Constitution).

    The Supreme Court and judicial branch must assure that actions comport with fundamental and statutory law and must not legislate, modify legislation or modify legislation by “interpretation.”

    Lincoln was crazy.

    The singular American failure has been and remains the Supreme Court.

      1. Geez! The whole post?

        Thank you so much.

        I’m gonna print this, frame it and put on the wall of my “man cave!’

        No. I’m gonna have my wife do it!

        Even better.

        Dang!
        _____

        Start here, Einstein.

        Cite the Constitution wherein secession is denied or prohibited.

        Without a legal basis for the denial of secession, Lincoln must have been thrown in prison for nullification, subversion, insurrection and rebellion, and the CSA must have been addressed as a sovereign foreign nation.

        Nothing Lincoln did after his illicit denial of secession would have ever happened.

        Of note: It was fortuitous that Maximilian lost, lest he successfully support the South against the North. There’s a can of worms.

  9. “Support and defend the Consitution”. What a novel concept. The Constitution can be changed legislatively by 2/3 of the Senate and House and 3/4 of the states or thru a convention of states and subsequent passage of an amendment by 3/4 of the states. If so many people support abortion , it should be easy enough to get the votes either way. I would assume the votes are not there because it has been 50 years since Roe vs Wade and it has not happened. Change the constitution as lt has been done many times before or if Roe vs Wade is overturned then each state can make it’s own decision that is correct for it’s citizens. I believe that is called a Federal Republic.

    1. “[I]t should be easy enough to get the votes either way.”

      So the “principle” expressed here is this: If a specific private action is not listed in the Constitution, then an individual does not have the right to take that action.

      That is a mind-numbingly, upside down view of the nature and purpose of America’s Constitution. And, apparently, the conservatives holding that view have no desire to consider its horrifying implications. And I am tired of naming them for those who refuse to see.

      1. No, the principle expressed is that if a specific action (or better stated, power to regulate a specific action) isn’t enumerated in the constitution, then laws regulating that specific action, if any, are under the authority of the individual states. Period.

        1. “. . . isn’t enumerated in the constitution, then laws regulating that specific action, if any, are under the authority of the individual states.”

          Do you have any idea how long that list is? On your view, a state government can compel an individual to: eat certain foods, exercise or not, take vaccines, wear a mask, read certain books, etc., etc.

          What you and other conservatives are arguing for, on this issue, is unlimited *state* government. I don’t know what country you’re living in, but it’s not a Federal republic.

          1. Sam, understandably, you don’t like portions of the Constitution. However, moving some of its power to the states adds additional strength to the checks and balances of the Constitution. You advocate for your ideology, not the Constitution or our present Constitutional Republic. That is fine, but why not be open about your advocacy?

  10. The Pro-Aborts recently bombed a Pro-Life Center in Wisconsin, allegedly incited by Nancy Pelosi. Their terrorizing the Justices at their homes recently, in violation of Federal law, is well documented. Justice Thomas and all Americans should expect further escalation by the Pro-Abort anarchists. We should also expect the US Dept of Justice and Attorney General Garland to not do anything about these increasing acts of lawlessness except uttering platitudes. We are at war.

    “Wisconsin pro-life group calls out Pelosi’s inciteful rhetoric after Molotov cocktail attack”

    Wisconsin Family Action’s headquarters vandalized and hit with Molotov cocktail

    Fox News Staff
    May 10, 2022

    1. If any of the Justice’s were “terrorized” by a couple of dozen women chanting in the street in front of their homes, with a line of police officers on the lawn making sure they keep their distance, then I would say that those Justices are pathetic cowards and an embarrassment to this country. Maybe we need to start a GoFundMe campaign to buy them testosterone patches.

      1. So be a sweetie and post your home address, so that you get a sampling of your own advocacy. As if….

        The proabortionists are never attractive women, nor in their child bearing years. They are fat, ugly, grotesque womyn that no one would touch with a ten feet pole, alpha dykes with hairy arm pits, beta male groomers, homosexual rejects and Liberal latte drinking, 20 something ANTIFA nucken futs types, who throw Molotov cocktails like those commie law students who got charged for terrorist activities. no doubt they are your grandchildren

        1. How unsurprising that you’re a misogynist and homophobe.

          My guess: you’re also an incel.

  11. “To stand by things decided” in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision;  a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case.Stare decisis requires that cases follow the precedents of other similar” This is in direct violation of our Constitution.  Our Founders warned the Court to NOT use precedent when deciding cases; that they should decide each case on its own merits”  So where did this doctrine come from – a bunch of liberal lawyers?  

    1. Especially if the original decision was in error, as in Roe. There must needs be a method for correcting an errant court decision.

      1. There is “a method for correcting an errant court decision” – a conservative Supreme Court Justice

    2. .Stare decisis requires that cases follow the precedents of other similar” This is in direct violation of our Constitution.

      You had a good take-off, and pretty good form, than got dangerously out over your skis and crashed due to hubris.

      Required? Constitution?….Nope crash and burn.

  12. Let the Leftist trashing of Turley continue. It is very predictable. As for me, I’ll slap him on the back and give him an “attaboy” for this short article. Besides my agreement with his position, it is also sensible.

  13. A Supreme Court decision is the law of the land. If the Supreme court does not respect the decision it is the law of the sand.

    1. A Supreme Court decision is based on the current/momentary opinions of a majority of the sitting Justices. It may be (and is) the law for the parties concerned but it is not “the law of the land”. That is the Constitution.

      1. “It’s the [“manifest tenor” of the Constitution], stupid!”

        – James Carville
        _____________

        The Constitution severely limits and restricts the laws made by Congress.

        Congress cannot deny, void and nullify any constitutional rights, freedoms, privileges or immunities.

        Most importantly, Congress has no power to tax for anything other than “…general Welfare…” (All well proceed – All), not individual or specific welfare, redistribution of wealth or charity, and it has no power to regulate anything other than money, commerce, and land and naval Forces. Read Article 1, Section 8.

        Read the 5th Amendment. Congress has no power to “claim or exercise” dominion over private property – no rent control, no minimum wage, no “Non-Discrimination” laws, no unfair “Fair Housing” laws, no quotas, no affirmative action, no forced busing, etc., etc.

  14. So why not just junk the entire concept of “settled law”? Apparently it has no useful function – except for issues that have no other logic to support their existence.

    1. Precedent is necessary to impart certainty to the law but is more important for lower courts and definitely more binding when applied to a SCOTUS ruling’s influence on a lower court.
      The Court must have a way to correct erroneous rulings and the SCOTUS is the place for it.

  15. “Respect” for stare decisis is fine. Blind adherence to prior precedent, regardless of how wrong it may be, is stupid.

    1. Stare decisis requires that cases follow the precedents of others similar” This is in direct violation of our Constitution.  Our Founders warned the Court to NOT use precedent when deciding cases; that they should decide each case on its own merits”  So where did this doctrine come from – a bunch of liberal lawyers?  

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