America’s reigning conservative Supreme Court Justice, Clarence Thomas, issued a blistering attack against “erroneous precedent” and the adherence to the legal principle of stare decisis in a decision on Monday as an obvious veiled attack against 1973’s Roe v. Wade, which enshrined abortion as a constitutional right.
Though the 7-2 concurring opinion on Monday had no relation to the issue of abortion (it focused on double-jeopardy), Clarence Thomas used the court’s deference for precedent in that case to attack “demonstrably erroneous decisions” the courts had made in the past. According to Fox News, experts have largely seen the justice’s blistering comments as laying the groundwork to overturn Roe v. Wade.
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote, adding that precedent “may remain relevant when it is not demonstrably erroneous.”
“The Constitution tasks the political branches—not the Judiciary—with systematically developing the laws that govern our society,” Thomas continued. “The Court’s role, by contrast, is to exercise the ‘Judicial Power,’ faithfully interpreting the Constitution and the laws enacted by those branches.”
The decision on Monday — Gamble v. United States — determined if it would not be in violation of double-jeopardy if individuals were tried by the state and federal government for the same crime. Thomas sided with the majority while Gorsuch sided with Justice Ginsburg. Much of the decision hinged on decades-long precedent that Thomas did not find “erroneous.” On the issue of stare decisis, Thomas noted that the courts tend to invoke that principle with such strong fervency only in the cases when precedent seems “least defensible.”
“As I see it, we would eliminate a significant amount of uncertainty and provide the very stability sought if we replaced our malleable balancing test with a clear, principled rule grounded in the meaning of the text,” Thomas said. “The true irony of our modern stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible.”
“In my view, if 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,” the justice concluded. “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.”
Several legal experts have been attacking Justice Thomas for writing these words, saying he has laid a dangerous intellectual and legal groundwork for courts to uphold blatant attacks on Roe v. Wade, such as the laws passed in Alabama and Georgia. Kristen Clarke, the President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law, told Fox News that the justice’s timing to issue such comments arouses suspicion.
“One can’t ignore the timing of Justice Thomas’s concurring opinion which comes at a moment when we are seeing a coordinated and relentless attack on Roe v. Wade across the country,” Clarke told the outlet. “The laws that have been adopted in several states violate the Court’s settled precedent in Roe. In his concurring opinion, Justice Thomas has made clear his willingness to reject precedents that he personally deems incorrect, a position that unnecessarily politicizes the Court.
“Justice Thomas’s view is fundamentally at odds with the way in which the Supreme Court has generally operated,” Clarke continued. “It is a view that threatens to further undermine the integrity of the Court and weaken the stability of the institution.”
Neal Katyal, a Georgetown Law professor and former Acting Solicitor General of the United States, said that settled precedents could theoretically be attacked based on Justice Thomas’ words. “Justice Thomas is essentially laying the intellectual groundwork for a massive revisiting of settled precedents,” Katyal wrote. “This can prove to be very, very dangerous.”