Judicial precedents are important. But Clarence Thomas has shown in his time on the Court that reflexive deference to them is unwise.
Judicial precedents are important. But Clarence Thomas has shown in his time on the Court that reflexive deference to them is unwise.
S upreme Court justice Clarence Thomas, who this weekend will mark 30 years on the Court, has little patience for precedent veneration. No idol of lawyerly adoration is safe in his chambers. He once called upon his colleagues to reconsider the holding of Calder v. Bull, a case that the Supreme Court decided in 1798. As he often takes care to explain in his lucid opinions, the Court’s job is to be faithful to the Constitution and to the law, not to its own decisions.
Lawyers who are invested in particular precedents, or in judicial supremacy generally, sometimes clutch their pearls when Thomas questions the Court’s prior decisions. Never are pearls more in danger of being snatched from stiffened necks than when Thomas mentions one precedent in particular, Roe v. Wade. His willingness to criticize the Court’s abortion precedents is often the subtext when discussion turns to the senior justice’s jurisprudence. The Court is poised to discuss those precedents this term as it deliberates in the case Dobbs v. Jackson Women’s Health Organization. Justice Thomas has done more than any other justice to make it plausible that the Court could conduct a critical examination of Roe in the Dobbs case.
Even lawyers who favor originalist methods of interpreting constitutions and laws have criticized Thomas for his thin theory of stare decisis, the legal doctrine that like cases should be decided alike. Many (though not all) of his critics take long-standing precedents to be “settled law,” a phrase one often hears used to describe badly reasoned decisions that the Court refuses to reconsider. But to speak of a judicial decision as law is to distort the public’s understanding of law and judicial power.
That distortion can be dangerous. When a court produces a string of unlawful decisions, the mistake of confusing precedents with law can be used for ideological ends to undermine the rule of law. Legal elites have blindly accepted the authority of wrong decisions throughout the Supreme Court’s history. When the Court ruled in 1857 that black Americans cannot be citizens, and in 1927 that “feeble minded” Americans can be deprived of their bodily liberty without due process of law, and in 1944 that Japanese Americans can be denied equal protection of the law, plenty of American lawyers were content to mouth, Thus saith the Court, ignoring dissenting opinions and contemporary critics who demonstrated at the time that those decisions were contrary to the law.
Justice Thomas understands another, related truth that many of his critics do not clearly affirm: Judges do not make law. Judges render judgment as the law directs. Law precedes and ought to determine their rulings.
Judicial work product is not the same as judicial source material. Judicial opinions are not laws. Good opinions declare the law, which preexists a judge’s declaration of it. Judgments are not laws. Sound judgments specify the law as concrete duties binding the parties in the case. Holdings are not laws. Clear legal analysis identifies the central issue or issues implicated in a legal dispute, then reasons from the law to a holding that directly answers the issue by combining correct statements of the governing law to correct statements of the relevant facts.
Good judges — judges who render lawful judgment — search for the law, declare the law, identify those factual findings that are made relevant by the law and are supported by the evidence, and then reason from those premises to a judgment. The judgment obligates the parties in the case because the judge occupies an office of authority. But the judgment is entitled to our respect as a lawful judgment only insofar as the judge has derived it correctly from the law.
What about precedents, prior decisions of the same or higher court? Are they not law? In short, no. Precedents look like laws because they perform a similar function in judicial reasoning. Judges refer to precedents when explaining the reasons for their judgments. Sometimes judges treat a particularly venerable precedent as authoritative, in much the same way that good judges treat law as authoritative. But the reason why a judge defers to a sound precedent is not the same reason why a judge should obey and apply a law.
Under the doctrine known as stare decisis, judges follow precedents in part to maintain the integrity of judicial decision-making and the consistency of judgments. But the primary reason why judges look to precedents is to look through those precedents toward the law itself. Precedents inform sound legal analysis because, and only insofar as, they supply good evidence of what the law is. To put it in formal logical terms, laws are the premises in judicial reasoning while precedents are data from which the premises are inferred.
The value of a precedent is thus contingent upon the extent to which it accurately declares the law. This means that precedents can be sound or unsound, good or bad. In his own words, Justice Thomas’s “vision of the process of judging is unabashedly based on the proposition that there are right and wrong answers to legal questions.” Judges are human and make mistakes. “Accordingly, judicial decisions may incorrectly interpret the law, and when they do, subsequent courts must confront the question when to depart from them.”
To follow a precedent without regard to the soundness of the precedent — its factual and legal correctness — is to abdicate one’s responsibility as an officer of the court. In 2019, Thomas wrote a concurring opinion in the case Gamble v. United States in order to explain how “the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty.” When the Court “elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law,” it yields to the temptation “to confuse our own preferences with the requirements of the law.” To adhere to a “demonstrably erroneous precedent” is to exercise a power that the Court does not have. “A demonstrably incorrect judicial decision . . . is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.”
This does not entail that each issue should be decided afresh every time it surfaces. Like cases should be decided alike. Consistent administration of the law is also an important condition of the rule of law. Thomas’s reference to “decisions outside the realm of permissible interpretation” suggests that, if reasonable minds can disagree on the meaning of a law, the fact that other judges have consistently agreed on an interpretation is a reason to adhere to that interpretation, even if another interpretation seems more reasonable. Judges in our Anglo-American legal tradition have reasoned that way for centuries.
Nevertheless, judicial integrity has at least as much to fear from blatant error as from inconsistency. Among all the justices, Thomas is most ready to correct the Court’s manifest errors. For example, he is prepared to roll back decades of bad precedents that misinterpret the Takings Clause of the Fifth Amendment. In the case Kelo v. City of New London, the Court infamously permitted a municipal government to take property from law-abiding homeowners and convey it to private developers and a pharmaceutical company. The Takings Clause forbids a government from taking private property except for “public use.” Prior to Kelo, the Court had for decades allowed governments to take property for private use in cases where officials deemed the purpose for the taking sufficiently important.
Thomas rejected those precedents and reasoned directly from the Constitution itself. The Court’s prior decisions ratifying takings for any purpose that a state government deems public “cannot be applied in principled manner.” He concluded: “I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.” By contrast, the other eight justices bent themselves into pretzels trying to reconcile the Takings Clause to the Court’s precedents. Even Justice O’Connor, who wrote a dissent joined by three other justices, was not prepared to return the Takings Clause to its original meaning. Instead, she tried to articulate a standard that would preserve the Court’s precedents but not authorize the expropriation in Kelo. The standard she suggested had no grounding in law or the Constitution.
When the Court renders a judgment contrary to law, it does itself no favors by refusing to own its error. We all know people who refuse to acknowledge their mistakes. We don’t respect those people. Justice Thomas has earned the respect of many Court watchers by publishing his criticisms of the Court’s unlawful precedents. However long he serves, his candor will continue to enlighten for years to come.