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. “Constitutional” government essentially means “limited” government (or not everything is the government’s business) – the polar opposite of how some agencies operate. Maybe Thomas should review his past votes on things like the 4th Amendment warrant requirement or liberal eminent domain interpretation (taking someone’s private property away then giving it to another private entity). Radical rulings.

  2. So glad this statement was selected as the headline. It is priceless. No doubt it will be widely misused but it is a gem.

  3. Add Pelosi to the long list of people President Trump took on. Fought, and ground into an incoherent dust.

    The speaker of the house abandoning the constitution.

    “I don’t disrespect people’s views and how they want to live their lives, but I don’t think that it’s up to the Donald Trump appointees on the court or any politicians to make that decision for women,” she said.

  4. Turley says “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.” So, according to Turley’s subjective beliefs, application of stare decisis, a bedrock principle of SCOTUS jurisprudence, should be based on a judge’s subjective opinion, instead of the Constitution s/he has sworn to preserve and protect. Stare decisis exists to prevent exactly what is happening now: that the law changes every time administrations change and new judges are added, and especially when change is the result of politics, not jurisprudential reasons. The SCOTUS is supposed to rise above the fray of partisan politics and to be the independent interpreter of the Constitution. No more. Another thing Trump has killed. Precedent is not “erroneous” just because some political hack wearing a black robe disagrees with it. This is just another example of your deceitful little spin since you went on the Fox payroll. Roe is very well-founded in the Constitutional principles of freedom and liberty, but Alito said it should be reversed because it wasn’t “deeply rooted”.

    In your lame attempt to defend Dobbs, you quote Thomas, the least-respected person on the SCOTUS, who doesn’t even have sense or integrity enough to recuse himself over the direct conflict of interest in voting whether emails, some involving his wife, were subpoenaed for purposes of investigating the insurrection. Thomas was the sole dissenter. Turley: where is you commentary on that situation–or, do you also believe that ethics should also be a matter of subjective belief? You lamely attempt to defend this position by claiming that Plessy v. Ferguson, the “separate but equal” doctrine stuck down by Brown v. Bd. of Education, because “separate but equal” was wrong–again, something subjective. There are lots of people who think “separate but equal” is just fine, partly because, according to some, “separate but equal” IS “deeply rooted”– supported the Bible as some interpret it. They argue that if the Bible allowed for slaves, and if God didn’t make us all to look alike, but gave us differences in racial appearance, those things are proof that the races don’t belong together, so how is “separate but equal” wrong? Because times change, values and beliefs change, and society evolves, so must the Constitution be flexible enough to adapt and apply principles it establishes like freedom and liberty to modern living. Most Americans believe that abortion, up to the age of fetal viability, should not be outlawed, but that a woman has the rights of privacy and liberty to decide whether to terminate an embryo or fetus in the primitive stages of development. That is what Roe held, and it is solid. Reversal of Roe is purely political, more Trump fallout. And, you can’t defend the illogical reasoning either, Turley.

    1. Natacha loves stare decisis when it is applied to a court finding she agrees with but doesn’t thinks that stare decises should not be considered when it is applied to the Jim Crow laws. Has anyone noticed that Natacha never talks about increasing the efforts of the left to pass an amendment to the constitution that would codify a right to abortion. Please consider also that Natacha never says that abortion should be limited in any way. She has built her mental hand and even when she’s losing she still continues to throw money into the pot. I recommend Gamblers Anonymous. Of course, first you have to admit that you have a problem.

    2. Natacha you state that a woman should have a right to abort a child when it is in a primitive state of abortion. Are you now telling us that abortion should have some limits? Please state your position in writing at what stage of a pregnancy abortion should no longer be allowed. Please provide your thoughts but remember that your statement will be archived and will be sent to Planned Parenthood. Be aware that if you place limits on abortion you risk the possibility of being cancelled by all your friends. Please, just tell us what your limits on abortion are. Me thinks you are loathe to go there for lack of reason.

      1. I don’t know what a “primitive state of abortion” is. If you’ve read what I’ve written, I’ve said that I agree with the holding of Roe, even though, being a Catholic, I’d never get an abortion. But, I think that in a secular society, no religion has the right to impose its values or beliefs on the result who don’t agree, which is what Dobbs does. And, you are not qualified to speak about being “cancelled”.

    3. At least she got us back on topic. All those people wanting to spout off about something else, go someplace else. And OT does not excuse you.

    4. Mmm…Thomas is right. Stare decisis seeks to limit discussion and debate and is the last hope of cons and libs alike. If a nation’s mores change, in your view, then a living breathing Constitution can handle when the pendulum swings back. Also, the Court issues opinion. Last I knew it’s hard to separate opinions from subjective lines, as Justices wrestle with implications and outcomes of their decisions.

      I believe most folks do not want abortion outlawed, but I don’t think they want it to be an elective form of birth control, either. Health of the mother, rape, incest, most people agree on these. It gets a lot grayer for folks when it’s used as a get out of jail free card. Also, viability has likely improved over the last 50 years, as medical science has advanced. Regardless, abortion is here now, and, it will be up to the states to determine their laws, if the leaked opinion remains.

    5. you quote Thomas, the least-respected person on the SCOTUS, who doesn’t even have sense or integrity enough to recuse himself

      Ad hominem attack. If you have a problem with Thomas’s decisions, lay out your case. But leftist can’t debate any issue. That is why you always get personal. Avoiding facts.

  5. Wow…. this discussion has gone off the rails….

    I’m not sure who gains from an argument of who killed more people, but I’m pretty sure that there are no winners in this. Nothing to be proud of on either side.

    If someone wants to raise the issue of whether Democrats or Republicans have the best plan for dealing with mental illness, I’m all ears, otherwise we’re down to a discussion of banning black dogs because the Son of Sam received his killing spree instructions from one.

    Insane is as insane does. And hyping a political scapegoat to link to an insane act is well….just nuts…

    America deserves better. And America is better.

    1. Amen

      We have tried most everything to deal with mental health issues for 2 centuries
      Everything we have tried has proved crap
      Often good intentions become evil

      I will be happy to hear from anyone with an idea that has not already failed horribly

      A significant portion of permanently homeless are mentaller Ill
      A significant portion of drug addicts

      Rather than fiight over what to call these people

      Come up with a means to help that actually works

      So far there is none

      And pretending this is about politics is evil

      No one has answer to this problem
      It is immune to ideology

      It is more proof that government is not the answer

      If you want to claim the right has done no better
      So what
      The right does not promise government answers to every problem

      1. John, NYS created state mental hospitals. They kept building the hospital population at one time so that people who no longer needed assistance remained in the hospital so long that there was no way to release them into society. Years passed, and suddenly new ideas arose, and as usual, little thought was put into those ideas (which in many ways were proper). Suddenly orders from above opened the doors to ALL state mental institutions. That had terrible consequences. In a matter of hours, to my understanding, at one institution, at least three deaths occurred, and many people ended up in the hospital. The local heads of the mental hospital shut and locked the doors illegally while waiting for approval.

        Politicians get off on sweeping declarations, and that is why so many patients with mental illness were hospitalized as inmates for lifetimes. It is also why the doors were ordered wide open later. As RBG would say about the court and its decisions on abortion, I think the problem is that legislators have to create corridors for the more local institutions to act and not demand such sweeping reforms, which are invariably political. (Note that this deals with legislative decisions while RBG deals with judicial decisions.)

        Wide swings in policy do not permit the time needed for society to catch up with the various social developments. Impatience causes great harm when one tries to change how society thinks.

        1. more than two centuries of dealing with mental illness have myriads of examples of failure, and no successes.

          Nearly every bad thing we did to the mentally ill we did with good intentions. Only to decades later call cruel and inhuman.
          Today the seriously mentally ill tend to end up on the streets homeless often doing drugs and living short miserable lives.

          We do not have an answer.

          I do not know of a mass killer that was not mentally ill. The most common diagnosis is paranoid schizophrenia.
          There will almost certainly be somone on the right who points out that just about every mass killer is a failure of the system – they should have been committed. But that has not worked well, further there are I beleive 2M functional paranoid schizophrenics in the US. My brother is one. I had two friends – one close that were diagnosed.

          Paranoid Schitz’s are the most dangerous mental illness – the most prone to violence – mass killing even.

          Yet PS’s are only double the population norms for violence. Mentally healthy black people are also double the norm for violence.
          If we lock up all Paranoid Schitz’s are we going to lock up all blacks ?

          It is ALWAYS easy to tell these guys are mass killers after the fact. It is not so easy before hand.

            1. Where they will go when they commit a crime.

              The crime rate of paranoid schizophrenics is double the norm.
              The crime rate of blacks is double the norm.
              We are not supposed to imprison either just because they have a higher than normal crime rate.

              1. John B Say — The seriously mentally ill need to e housed away from society so that they do not commit crimes. And there are currently facilities for the criminal insane, a few of them.

                The idea is to prevent crime by such removal. It used to happen. When the insane asylums were abolished and the residents turned out into the streets of course the crime rate went up.

                1. David,

                  I have not proposed specific answers – only noted that everything we have tried – including what you propose has FAILED horribly.

                  We STARTED doing what you want – in the 18th and 19th centuries and it lead to massive abuses.

                  One of the most important differences between us is that you do not grasp that even well intentioned institutions given power will corrupt.

                  As Lord Acton noted – “Power Corrupts”.

                  That is an immutable law of human behavior.

                  “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary”

                  Madison Federalist 51.

                  You may be correct that certain crime rose as mental institutions were closed.
                  You evade the fact that people were essentially imprisoned without due process, and treated heinously and deprived over control of their own lives.

          1. “more than two centuries of dealing with mental illness have myriads of examples of failure, and no successes.”

            You are mostly correct. Aside from drugs, we haven’t made significant inroads in treatment. We can ameliorate the problem for the mentally ill and society, but we cannot solve it. The wide swings government has taken over the years have not been helpful.

            1. The vast majority of mental ilnesses do not have a drug that is more than marginally effective.

              A portion of our criminal drug problem today is that many people with mental illness self medicate with illegal drugs that are often as if not more effective than prescribed drugs.

              1. “The vast majority of mental ilnesses do not have a drug that is more than marginally effective.”

                John, your statement is based on how one defines the diseases and effectiveness. Many people have a noticeable benefit, and many take medications that are doing next to nothing. I won’t argue the point unless the discussion involves a specific type of illness. Our solutions are far from desirable.

                I think dealing with a lot of these problems might be easier to deal with in a rural environment.

      2. Some of the working sanatoriums of the 19th Century were fairly successful. Patients had work to do and seemed to be improved as a result. Otherwise, no doubt that history is littered with bad ideas in mental health treatment.

    2. The Trolls:

      Your not imagining things, there are Artificial Intelligence Trolls & Humanoid Trolls here.
      Disregardful them, They are Pest that are Hired-Hands ultimately of Corporate origins (i.e.: How they make their $),
      that propagate at points of Free Speech.

      Some are just Veterans confined to their situation (wheelchair, bed, etc.). This is an outlet for them (their ‘Flippy’). They are getting Governmental Assistance in one way or another. So they are not starving by any means.
      Obliviously they have an Internet connection.

      There is Help for them, for example here:

      Letter to the Menticided A 12-Step Recovery Program
      https://margaretannaalice.substack.com/p/letter-to-the-menticided-a-12-step?s=r

      I would recommend a continuous drip (24/7/365) of:
      Thorzine (Chlorpromazine)
      Brand name: Thorazine
      Antipsychotic
      It can treat mental illness, behavioral disorders, tetanus, blood disorders such as porphyria, and severe nausea and vomiting. It can also reduce anxiety before surgery (leucotomy psychosurgery).

  6. It’s hard to see Thomas’ comments as anything less than a rebuke of Chief Justice Roberts’ recent abortion decisions.
    In 2016, in the Whole Women’s Health case Roberts dissented from the majority that ruled the Texas law requiring hospital admitting privileges was unconstitutional. 4 years later in 2020, in the June Medical Services case (a Louisiana law similar to the Texas law) Roberts reversed his dissent from the Texas decision and sided with the majority striking down the Louisiana law (even though he still felt the decision was wrong) because of Stare Decisis;
    It seems like Thomas is calling out Roberts for his reliance on Stare Decisis in the Louisiana case and a possible Roberts opinion on the current abortion case the court is deliberating.

  7. Clarence Thomas has become my favorite Justice. He comes from such an inredible family story. And he and his wife love our National Parks….and I believe have camped at many, in hopes of eventually camping at all.
    OT Is it just me, or do Margaret Atwood’s little army of hooded, breasted red “monks” (I swear those costumes are the best birth control for those ladies!) remind you of another “red menace” from outer space that crept through the American streets, terrorizing good decent people! Sound familiar?

  8. Above was made an excellent point that if Roe is overturned and liberals get a majority on the Court you can bet that stare decisis will no longer be sacrosanct. Oh, also if Republicans retake the senate the filibuster will no longer be racist and a Jim Crow relic.

  9. Another “precedent” that needs to be overturned is the fallacy regarding separation of church and state. This “position” is not supported by the Constitution or the Bill of Rights, and was never contemplated in the Constitutional Convention. SCOTUS needs to revisit this issue and make a ruling correcting unsupported previous rulings!

    1. “. . . the fallacy regarding separation of church and state.”

      So you want a theocracy — in America.

  10. (OT)

    Associated Press: Law enforcement says that the death toll in a mass shooting this evening at a Buffalo, NY, supermarket has risen to 10. Most of those killed are Black.

    The mass shooter is in custody. He had posted a manifesto online espousing the White Replacement Theory, a racist conspiracy theory promoted by Tucker Carlson on Fox News. He identified himself as a white supremacist and anti-Semite, and he live-streamed his mass murder.

    The FBI has announced that they’re investigating the mass shooting as “racially motivated violent extremism.”

    1. Adangerousninny:

      “The mass shooter is in custody. He had posted a manifesto online espousing the White Replacement Theory, a racist conspiracy theory promoted by Tucker Carlson on Fox News. He identified himself as a white supremacist and anti-Semite, and he live-streamed his mass murder.”
      ************************************
      Oh so Tucker is responsible for a psycho who shoots up a grocery store because he voices a political opinion which incidentally isn’t the one you described. Obama pushed BLM. Is he responsbile for the more than 30 deaths and $2 billion in damages to mostly black-owned businesses in the BLM riots? You know talking excrement like this is inflammatory and kinda makes you excrement. Since you’re shameless and care nothing about the victims (who ought to be our prime concern) I won’t even try to appeal to your consceince but maybe take a look at the NDE videos on Youtube. Hell seems pretty much pegged and those who shamelessly incite violence seem to have a particularly poor time of it.

      1. Pro-tip: when you have to pretend that someone implied something they didn’t imply, you’ve already lost the argument.

        1. Adanggerousninny:

          “Pro-tip: when you have to pretend that someone implied something they didn’t imply, you’ve already lost the argument.”
          *****************************************
          Play that “innuendo doesn’t exist” game with someone dumber.

          1. mespo……..I love “adangerousninny” .It just rolls off the tongue. BTW we seem to have an embarrassment of Anonymouses on this blog..

    2. What is your claim?

      That Black Leaders espouse theories that cause black violence so that most murders are caused by a small percentage of ‘their’ people.

      That Tucker is a racist because you are a liar?

      That you sound as crazy as that heinous killer?

      What is your claim?

    3. care to share with us exactly what Tucker Carlson said. need a verifiable objective source such as video from his show. otherwise your suffering from Tucker Derangement Syndrome

      1. Here’s an example:
        https://twitter.com/briantylercohen/status/1525581101623758848 (video of Carlson embedded)
        You can find more video for yourself.

        Here’s Rep. Matt Gaetz saying “@TuckerCarlson is CORRECT about Replacement Theory”
        https://twitter.com/mattgaetz/status/1441807874053885952

        As for your question, “what does it have to do with Clarence Thomas,” did you fail to see the “(OT)” at the top of my post? That’s an identification that it’s Off Topic. Ignore it if you don’t care about racist mass murders and law enforcement concern about domestic violent extremists.

        1. I don’t know what the mass shooter was talking about, and I doubt you do either unless you have access to what he wrote. If so, copy it and render your interpretation.

          A country either has borders or doesn’t. You don’t like borders. A government either enforces its laws or doesn’t. You don’t believe in the enforcement of the law.

          You are a nutcase.

          1. You’re the nutcase if you think I’m going to copy a murderous white nationalist screed for you here.

            Homeland Security Today:
            “In a 180-page manifesto posted online in conjunction with the attack, the author identifies himself as Gendron and calls himself a populist, fascist, white supremacist, antisemite, and racist while detailing his belief in the “white genocide” anti-immigrant conspiracy theory. …
            “The document is largely packed with anti-Black and antisemitic memes, links, and conspiracy theories, complaining about “empty nurseries, full casinos, empty churches and full mosques,” calling for the assassination of “your local anti-white CEO” and railing against gun control while declaring that “the radicalization of young Western men is not just unavoidable, but inevitable.” …
            “The manifesto includes a Q&A section in which the author answers the question of whether “there a particular person that radicalized you the most.” “Yes and his name is Brenton Harrison Tarrant. Brenton’s livestream started everything you see here,” the document states, citing the terrorist who attacked two mosques in Christchurch, New Zealand, in 2019 and livestreamed the attack. “Brenton started my real research into the problems with immigration and foreigners in our White lands, without his livestream I would likely have no idea about the real problems the West is facing.””

            But you do you, and attack me instead of condemning this mass murderer.
            You are a sick, sick man.

            1. Homeland Security Today:…

              Do you have a credible source? The Government is proven to be liars and politically driven more times than not.

              1. Another 20 something with serious mental health issues shoots up a grocery store posts a idiotic manifesto and the left blames the right

                These people are universally nuts
                They as frequently rant leftist nonsense or odd mixtures
                They have been gay or trans

                They come in all flavors
                One killed people over grammar

                Get a clue
                Nuts is nuts

                These people make up a tiny portion of the population
                Without locking up everyone with mental health issues you are not stopping them

            2. Buffalo shooter had Ukrainian Nazi symbol on his manifesto. NZ shooter he copycatted trained in Ukraine. But the liberals assure me that these Nazis are good ones and that the US is not compromising its values by adopting them.

            3. “calls himself a populist, fascist, …”

              ATS, the killer, probably doesn’t know what a populist or fascist is, so I don’t think any of us can understand his mind. That was my minor point above.

              We get back to your claim. Innuendo, I suppose. That is what you are all about. You weren’t actually condemning the killer. You were trying to condemn Tucker, Gaetz and others on the right. The killer was merely a vehicle for you to express your aberrant thoughts. As you said, “instead of condemning this mass murderer, ” you made a political argument. “You are a sick, sick man” and quite ignorant.

            4. Your contemptible
              Nothing wrong with condemning you

              There is no requirement that each of us condemns every bad thing that happens on the planet

              More blacks will likely be killed by blacks next weekend in Chicago
              We here crickets from the left
              Black on black murder in the us has doubled since 2019 in many democrat cities
              Crickets

              Drug ODs skyrocket since pandemic
              Increasing further with the border mess
              Crickets

              It is clear what you care about
              You do not give a crap about
              Real problems that do not fit your narrative

        2. “Here’s an example:”

          When it satisfies your desire, you spin a flimsy thread into “evidence.” When it thwarts your desire, “infinite” evidence is insufficient.

          I don’t think that’s a principled or logical approach to what counts as “evidence.”

          1. When it satisfies your desire, you pretend that someone has acted in ways they haven’t acted.

            I don’t think that’s a principled or logical approach to describing behavior.

    4. “racially motivated violent extremism.”

      Lets not forget, by the end of the month, Blacks will kill more blacks than who ever Garland is calling a white supremacist.

      Who is the real racist?

      1. I dare you to name a Black person who has posted a 180 page racist screed before killing some other Black person.

        The name of this white nationalist mass murderer is Payton Gendron.

        1. I want you to name a white nationalist that shots and kills more black children than Blacks.
          We can can tall about planned parenthood that has had an agenda to eliminate Blacks through abortion.

        2. ATS, I think everyone will agree this is a crazy man not representative of those around him. We see that whether white, black, Asian, etc. I don’t know the content, but one must be semi-literate to write a 180-page screed and crazy.

          Why is it that when there is a mass murderer that happens to be white, you use the term white nationalist mass murderer, but when the murderer is black, you seldom mention race? Are you a racist?

        3. the type of blacks who routinely gun down each other and each others’ children can’t even write their own name.

          laughable and ludicrous that you believe they have any semblance of intelligence to write something longer than “X”.

          this fallacy reflects on your own limited level of intelligence. which is why we ignore your screed.

        4. In Rwanda the Hutu spewed racial hatred of Tutsi over the national radio for months before murdering almost a million Tutsi in 90 days with machetes

    5. Like playing with number do you Anon, well here you.

      Bill Gates, Fauci, FDA, etc., they all have been doing a helluva job.

      *****

      https://www.thegatewaypundit.com/2022/05/1-million-covid-deaths-real-reason-people-died-covid-united-states-every-country/

      ***

      SMOKING GUN: CDC Data Exposes Excessive Deaths Following Mass Covid Injections

      138,090 views

      ·May 12, 2022
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