Bench Memos

Law & the Courts

Justice Thomas and Justice Ginsburg on Overruling Precedent

In its ruling today in Gamble v. United States, the Supreme Court, by a vote of 7 to 2, affirmed 170 years of precedent applying the dual-sovereignty doctrine to the Fifth Amendment’s Double Jeopardy Clause. As Justice Alito’s majority opinion sums up this doctrine, “a crime under one sovereign’s laws is not ‘the same offence’ [under the text of the Double Jeopardy Clause] as a crime under the laws of another sovereign.” In other words, the Double Jeopardy Clause does not bar a state from “prosecut[ing] a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” and vice versa.

I’m going to pass over the substantive debate between Justice Alito, on the one hand, and Justice Ginsburg and Justice Gorsuch, on the other. I’d instead first like to highlight Justice Thomas’s 17-page concurring opinion in which he addresses how the doctrine of stare decisis ought to be applied.

Thomas argues that the Court’s manner of viewing stare decisis as a judicial policy that balances several factors “might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law.” But “[w]e operate in a system of written law” in which “the systematic development of the law is accomplished democratically.” In such a system, “Our judicial task is modest: We interpret and apply written law to the facts of particular cases.”

It follows, Thomas argues, that “if the Court encounters a decision that is demonstrably erroneousi.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other facts support overruling the precedent.” (Emphasis added.) By contrast, federal courts “may (but need not) adhere to an incorrect decision” that is a “textually permissible interpretation of the law.” (Emphasis added.) The same principles, he says, should apply to both constitutional questions and statutory questions.

Thomas’s opinion (which my brief summary doesn’t do justice to—read the whole thing) should provoke a lot of discussion. Much criticism is likely to come from folks who think that his approach fails to give enough weight to stare decisis (or at least to the wrong precedents they hope to salvage). But I suspect that there will also be critics who lament that he would allow an incorrect decision to stand merely because it offers a “textually permissible” interpretation.

Meanwhile, Justice Ginsburg, in calling for the dual-sovereignty doctrine to be overruled, again departs from the alarmist tenor of the attention-grabbing dissent she joined last month. In that dissent, she and her fellow liberals warned that “Each time the Court overrules a case, the Court produces increased uncertainty” that could threaten the “necessary stability” of the law, and that the Court should therefore overrule precedent “only when the circumstances demand it.” Today, while acknowledging that the Court has “repeatedly embraced” the dual-sovereignty doctrine, she recites the usual proposition that stare decisis “is not an inexorable command” and offers her reasons why 170 years of precedent should be overturned.

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