Bench Memos

Law & the Courts

Justice Thomas Lays Out an Originalist’s Perspective on Stare Decisis

Today the Supreme Court announced its decision in Gamble v. United States, in which it declined to overturn its longstanding view that the Double Jeopardy Clause does not prevent an individual from being prosecuted by both the state and the federal government — under each jurisdiction’s respective criminal laws — regardless of whether the state and federal offenses stem from the same conduct. In its decision, the Court found “the historical evidence assembled by” the defendant to be “feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent.”

Justice Clarence Thomas joined the Court’s decision and wrote a concurrence so he could separately address “the proper role of the doctrine of stare decisis.” He spelled out as explicitly as he has in his nearly 28 years of service why the current Court is wrong to “view[] stare decisis as a ‘principle of policy’ that balances several factors to decide whether the scales tip in favor of overruling precedent,” requiring (in the words of Planned Parenthood v. Casey (1992)) “a ‘special reason over and above the belief that a prior case was wrongly decided’ to overrule a precedent.” That approach “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 our federal system is different.”

Here the Court’s role is set forth in Article III, § 1 of the Constitution, as the exercise of “judicial Power.” Citing two decisions by Chief Justice John Marshall, the Federalist Papers, and James Madison’s correspondence, Thomas explained,

That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particular “case” or “controversy” before the court. . . . It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” . . .

That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legislate). . . . The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” . . .

Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. . . . [It] is not the power to “alter” the law; it is the duty to correctly “expound” it.

Thomas recognized the pedigree of stare decisis in English common law but added that judges were long expected to correct erroneous precedent. Moreover, federal courts look to different sources of law than common-law courts: They “need not—and generally cannot—articulate the law in the first instance,” but are primarily bound by “three bodies of federal positive law—the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing ‘customs’ or ‘rules and maxims.’”

Since “the primary role of federal courts today is to interpret legal texts with ascertainable meanings,” Thomas summarized the weight of judicial precedent as follows:

[I]f 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.

Thus, “[w]hen faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” After all, judicial officers take an oath to support the Constitution, and “the Constitution . . . requires us to privilege its text over our own precedents when the two are in conflict.”

Still, precedent “may remain relevant when it is not demonstrably erroneous,” as when the indeterminacy of written law may lead reasonable jurists to arrive at different conclusions regarding a legal text’s original meaning. This case provided such an example. Thomas praised the “admirable job” done by Justice Neil Gorsuch, who dissented with an analysis of the double jeopardy question that explored among other things postratification legal treatises. Ultimately, however, he found those sources inconclusive about the understanding of the Fifth Amendment when it was ratified, leaving him unpersuaded “that our precedent is incorrect as an original matter, much less demonstrably erroneous.”

Thomas concluded his commentary on stare decisis by noting how his view would provide more certainty and stability to the law than the current Court’s “malleable balancing test.” For good measure, he added the “true irony . . . that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible.”

With significance well beyond the immediate issue in Gamble, Thomas’s concurrence is one of the most thoughtful expositions on judicial precedent to come from the bench in modern times. It should be required reading, especially for originalists exploring the doctrine of stare decisis.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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