“Thomas never cared about precedent and still doesn’t.” That’s the shorthand Mark Joseph Stern uses when writing about Supreme Court justice Clarence Thomas’s concurrence in today’s decision on jury unanimity. But the justice’s opinion illustrates that it’s not quite right to deny that he believes precedent has some force.
What he says is that deference should not be granted to a precedent that is “demonstrably erroneous” in its interpretation of the law (whether that law be a statute or the Constitution). Thus he starts his opinion by noting that he accepts the Court’s precedent that holds that “the Sixth Amendment right to a trial by jury includes a protection against nonunanimous felony guilty verdicts.” He does not conduct a new inquiry into whether that view of the Sixth Amendment is our best reconstruction of its original meaning—which is what he would have to do if he truly gave the precedent no authority at all. He says, rather, that there is considerable evidence to back the Court’s longstanding precedent, that it is thus within the range of permissible interpretation, and finally that as a result he will follow it.
Because Thomas’s stated view on precedent gives it less deference than any of his colleagues, it is easy to miss or gloss over the nuances and declare him to be wholly a non-believer. But if we do that we may fail to see how defensible and even attractive that view is.