Clarence Thomas Is Actually Right About Supreme Court Precedent

Clarence Thomas.
Justice Clarence Thomas on the West Front of the U.S. Capitol on Jan. 20, 2017.
Joe Raedle/Getty Images

Although there were a few nationally important cases decided by the Supreme Court this term, such as Thursday’s decision that courts may not review partisan gerrymandering claims, the justices spent more time debating the question of stare decisis (to stand by things decided) than any other legal issue. Under what circumstances the court should reverse prior decisions was hotly contested by the justices throughout the term. This issue is vitally important because if the Supreme Court reverses its own cases too frequently, people can sensibly question whether we are governed by the rule of law or the rule of justices.

Much has been made by Supreme Court watchers of the dire warnings sounded by the normally calm Justices Elena Kagan and Stephen Breyer about the conservative justices’ willingness to reverse prior cases. For example, Breyer, angrily dissenting in Franchise Tax Board v. Hyatt (which overruled a decision allowing states to be sued in the courts of another state), complained that “it is … dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. … Today’s decision can only cause one to wonder which cases the Court will overrule next.” And in Knick v. Township of Scott, Pennsylvania (which reversed a 34-year-old rule barring plaintiffs from bringing takings claims in federal versus state courts), Kagan complained bitterly that the majority “transgresse[d] all usual principles of stare decisis” and, after quoting Breyer’s concern about which cases the court would overrule next, quipped, “Well, that didn’t take long. Now one may wonder yet again.”

In addition to Breyer and Kagan disagreeing with the court’s lack of respect for prior cases, Justice Clarence Thomas, the most senior justice, not only advocated overturning a number of landmark decisions such as New York Times v. Sullivan and Batson v. Kentucky, but he also wrote an ode to overturning prior cases in his concurring opinion in Gamble v. United States. He said that “underlying this legal system is the key premise that words, including written laws, are capable of objective, ascertainable meaning. … When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”

Of course, whether a case is “demonstrably erroneous” is often in the eye of the beholder, not some “objective” truth, despite Thomas’ reductionist dogmatism. Moreover, traditionally the justices have at least talked the talk of not overturning cases simply because five justices thought the prior decision incorrect. Apparently, Thomas disagrees, and for once, he is right.

As I’ve previously written, whether by explicit reversals, or through slicing and dicing, or through subtle and clever legal or factual distinctions, the Supreme Court has reversed itself in virtually every major category of litigated constitutional law based on the values of the justices sitting at the time. Though the justices try to deny it, their values, not legal rules, decide when the court will change course, and they do so at an alarming rate.

After the Civil War, the court was faced with one of the most important economic issues this country has ever faced. To fund the war, Congress for the first time made paper money legal tender for the repayment of debts. The Constitution, however, only mentions “Coin.” In 1870, the justices voted 5–3 (there were only eight justices at the time) that Congress did not have the authority to require creditors to accept “greenbacks” rather than gold or silver. The opinion pleased Democrats, who represented the creditor class, while angering the Republican Party and President Ulysses S. Grant, who sided more with debtors.

Just one year later, after one justice retired and Congress added a new seat, the three dissenters in the first case joined the two new justices appointed by Grant and reversed that decision. The dissenters argued that nothing about the facts and the law had changed, and they were right. This reversal was based on nothing other than a change in the court’s personnel, prompting the New York World newspaper to complain that the new “decision provokes the indignant contempt of thinking men. It is generally regarded not as the solemn adjudication of an upright and impartial tribunal, but as a base compliance with Executive instructions by creatures of the President placed upon the Bench to carry out his instructions.”

From 1903 through 1936, the Supreme Court invalidated hundreds of laws relating to employment and labor conditions including minimum wage requirements, union protections, and workplace safety rules. This Lochner era, named after a case striking down a New York statute limiting the hours of bakery employees, came to an end when President Franklin D. Roosevelt threatened to add new justices to the court. (Scholars debate how much of a role that threat played in the court’s change of heart.) The court’s new hands-off doctrine was not accompanied by any new evidence about what the Constitution originally meant or a change in text but was solely based on a change in the justices’ perceptions about the appropriate role of governmental regulation of our national economy. In other words, politics, not law, made all the difference.

Examples of the justices reversing course on our most fundamental legal questions could fill a casebook. In 1990’s Metro Broadcasting v. Federal Communications Commission, the court upheld a federal affirmative action law, saying that Congress has much more discretion to use racial preferences than the states do because of its power under Section 5 of the 14th Amendment to enforce the equal protection of the laws. Just a few years later, however, the court flatly overruled that case and held that strict scrutiny, the test used to evaluate state affirmative action programs, applied to such laws. Nothing had changed but the personnel on the court.

In 1939, the Supreme Court held that the Second Amendment only applied to military-style weapons. That decision lasted nearly 70 years, until the justices ruled in 2008 that the amendment protects an individual right to own handguns.

From 1791 to 1963, the First Amendment’s free exercise clause did not, according to the justices, require religious exemptions from generally applicable laws. From 1963 to 1990, the court held such exemptions were required in some circumstances. Then in 1990, the court reversed course again and said the old rule was better.

The establishment clause of the First Amendment at one time didn’t limit government aid to religious schools; then the court ruled that it prohibited most aid, and now all such aid is legal as long as similar assistance is also provided to nonreligious schools. On Friday, the court took up a case that would require some states to fund religious schools.

These reversals, and many, many others, didn’t involve peripheral or discreet legal issues but our most important social and political questions. The justices have gone back and forth on affirmative action, abortion, campaign finance reform, gun control, free speech, government regulation of the economy, and numerous other country-defining issues solely because the court’s politics and values changed as the justices changed.

This past demonstrates that Kagan and Breyer are right to be worried about how many important cases are likely on the chopping block given the new conservative majority. Unless another liberal replaces a conservative justice, the next few years will likely bring the overturning of Roe v. Wade, much stricter review of gun control legislation, greater protections for “religious liberty” at the expense of LBGTQ rights, and even a return to the judicial overruling of laws regulating the economy. These changes will come about not because of any new insights into the Constitution’s original meaning or because of new constitutional text, but because the justices will decide cases the same way they always have—according to their values and politics, not the rule of law.