Justice Thomas's on judicial precedent

Jan Crawford Greenburg is devoting this week on her blog, Legalities, to talk about his views on the Constitution and judging. Yesterday she wrote about Thomas's view of the role of precedent. It is not that he doesn't believe in stare decisis, but he holds a more nuanced view of which previous cases demand deference from the Supreme Court.

And at what point does a judge deviate from the precedent?

“That’s an individual decision on the part of judges. The judges to whom--or for whom--stare decisis applies most are the judges on the courts below us: the courts of appeals, the district courts, the magistrate judges, the bankruptcy judges, etc.

“Up here, this is the end of the line, and the only people who could revisit—in particular—constitutional cases are the members of this Court,” Thomas says. “In the statutory cases, Congress can revisit that. So you are less apt to change a precedent—because it can be corrected in the legislature, as opposed to this being the sole place that it can be changed.”

Thomas says he believes in stare decisis, especially in the statutory cases. If it’s a choice between precedent and what he considers a correct reading of the Constitution, though, he’s more willing to go to the Constitution. That’s not “radical,” he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.

He points out that a rigid adherence to precedent would mean Plessy v. Ferguson still would be on the books. Plessy was established doctrine, 58 years old, when it was overturned in Brown v. Board of Education.

That’s not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.

In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say “no more.” He suggested as much in his concurring opinion in United States v. Lopez, when the Court in 1995 struck down part of the Gun-Free School Zones Act as exceeding Congress’ power under the Commerce Clause.

Although Thomas suggested the Court should reconsider its approach under the Commerce Clause—which he believes is inconsistent with the Constitution and is a relatively recent innovation—he also stressed that “this extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions.”

The analysis does suggest, he wrote in his concurrence in Lopez, “that we ought to temper our Commerce Clause jurisprudence.”

Thomas sees precedent as the engine--or, in a different analogy, the bedrock. When you build a house or a barn, you have to get to solid ground to lay the foundation. So you dig. If you hit water, you keep digging. If you hit mud, you keep digging. Thomas wouldn’t stop until he hit the firm footing of solid ground.

Respecting precedent has recently been held up as the end all and be all of our jurisprudence. But only when the precedent is something that the speaker agrees with, most notably Roe v. Wade. When the precedent is one that the speaker disdains such as Bowers v. Hardwick which upheld a Georgia law criminalizing sodomy in 1986, they were ecstatic to see it overturned in 2003 in Lawrence v. Texas. Then stare decisis was thrown out the window. Instead of using precedent only when a justice likes the result isn't it better to have a justice grounding his interpretation in the Constitution?