Thomas took the gloves off in a separate 17-page opinion last week [June 17] as he joined the Court in declining to overturn the so-called dual sovereignty doctrine, which permits a state and the federal government to prosecute a defendant for the same criminal episode without violating the Double Jeopardy Clause. The 7-2 decision in Gamble v. United States proved to be a disappointment to the various critics of the dual sovereignty doctrine, including criminal defense lawyers and civil liberties groups on both sides of the political aisle.
Thomas himself had previously been one of those critics, but he opened his concurring opinion by disavowing his past view. "I agree," Thomas wrote in a newfound realization, "that the historical record does not bear out my initial skepticism of the dual-sovereignty doctrine."
Some other judge with a less exalted view of his own wisdom might take this episode as a lesson in judicial modesty, but not Thomas. Instead, he proceeded to reject a well established doctrine endorsed by all of the other justices, including the two newest justices, Neil Gorsuch and Brett Kavanaugh, in their recent Senate confirmations.
In Thomas's view, the Supreme Court is constitutionally bound to give a precedent no weight whatsoever if the prior decision is, in his 20-20 hindsight, "demonstrably erroneous." Among those erroneous decisions, in Thomas's view, are such landmarks as the abortion rights decision in Roe v. Wade (1973) and the more recent marriage equality decision in Obergefell v. Hodges (2015).
Thomas himself pledged allegiance to stare decisis in his Senate confirmation hearing back in 1991. He told the Democratic-majority Senate Judiciary Committee that he had no agenda to overrule precedent if confirmed. That promise was enough to help persuade 11 Democrats to join in the 52-48 vote to confirm Thomas despite the widespread assumption that he would vote to overrule Roe v. Wade at his first opportunity if confirmed.
In fact, Thomas argued for overturning a prisoner rights' precedent in a case argued in his full month on the Supreme Court. Later in the 1991 term, he joined with three other so-called conservatives in the dissenting opinion in Planned Parenthood v. Casey that forthrightly called for nullifying constitutional protection for reproductive rights nationwide.
The author of that dissenting opinion, Chief Justice William H. Rehnquist, is often quoted for his observation that stare decisis is "not an inexorable command." Rehnquist made that remark as the author of the 6-3 decision in Payne v. Tennessee (1991) that overturned nearly brand-new precedents to allow victim impact statements in death penalty cases. Two new justices, Anthony Kennedy and David Souter, provided the pivotal votes for scrapping the prior decisions.
The adherents to stare decisis agree on one proposition at least: a prior decision should not be overturned merely because of a change in personnel at the Supreme Court. Instead, as set out by Justice Antonin Scalia for a 5-4 majority in Montejo v. Louisiana (2009), the Court should consider overruling a prior decision based on "the workability" of the prior standard, "the antiquity of the precedent, the reliance interests stake, and of course whether the decision was well reasoned."
Scalia once remarked that, in contrast to his own view, Thomas did not really believe in stare decisis. In this new opinion, Thomas drops all pretenses and issues what amounts to a call to arms for conservative activists to take aim at prior decisions willy-nilly
In his confirmation hearing in 2005, Chief Justice John G. Roberts Jr. famously remarked that overturning prior decisions amounts to a "jolt to the system." In Payne, Rehnquist touted stare decisis as promoting stability, predictability, and respect for the law.
Thomas begs to differ. "[T]he Court's stare decisis doctrine," Thomas writes now, has the effect of "giving the veneer of respectability to our continued application of demonstrably incorrect precedents." The multi-factor "special circumstances" test, Thomas argues, "invites arbitrariness into judging."
The current, universally acknowledged approach to stare decisis might have made sense, Thomas now argues, in a common law system that relied primarily on judges to develop the law. "Our federal system is different," Thomas explains, because the Constitution limits the Court's role to "faithfully interpreting laws enacted by [the political] branches." Thomas goes even further by quoting the revered English jurist Blackstone as himself calling to disregard precedents if "flatly absurd or unjust."
The precedents that Thomas has found unworthy in the past include roughly three dozen that legal commentator Jason Rylander listed in a compilation in 2004. The list would be longer today. Three days after his Gamble concurrence, Thomas went so far as to call explicitly for overruling the 33-year-old precedent in Batson v. Kentucky (1986) that prohibits prosecutors from racial discrimination in jury selection. Thomas's call came in a dissenting opinion in Flowers v. Mississippi [June 21] that Justice Neil Gorsuch joined except for the attack on the prior ruling.
Thomas's disquisition on stare decisis, if published as a law journal article, would have attracted some attention of course. As an opinion in U.S. Reports, however, the impact may be greater by encouraging various conservative advocacy groups to further politicize federal courts and the Supreme Court itself to the long-term detriment of law and justice in the United States.
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