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Justice Thomas and Stare Decisis<\/strong><\/p>\n By Gregory E. Maggs[1]<\/a><\/p>\n <\/p>\n This essay briefly describes and analyzes two aspects of Justice Clarence Thomas\u2019s jurisprudence concerning the doctrine of stare decisis.\u00a0 The first aspect is well-known from his judicial opinions: Justice Thomas, unlike his judicial colleagues, believes that the Supreme Court should never follow demonstrably erroneous precedent.[2]<\/a>\u00a0 The second aspect is less familiar but perhaps equally important: Justice Thomas insists on knowing the full story behind any precedent before deciding whether to follow it, extend it, limit it, distinguish it, or overrule it.[3]<\/a> \u00a0Justice Thomas\u2019s views on these matters are not widely shared at present, but they may well influence other Justices in the future because Justice Thomas has advanced strong arguments in support of them.\u00a0 In the meantime, litigants before the Supreme Court might use knowledge of these aspects of Justice Thomas\u2019s stare decisis jurisprudence to make their arguments more persuasive to him.<\/p>\n I. Erroneous Precedent<\/strong><\/p>\n The doctrine of stare decisis is a \u201cdoctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.\u201d[4]<\/a> \u00a0Applying this doctrine, the Supreme Court generally insists on a \u201cspecial reason over and above the belief that a prior case was wrongly decided\u201d before rejecting it as a binding precedent.[5]<\/a> \u00a0When asked to overrule a prior decision, the Supreme Court typically considers several factors, such as: (1) the \u201cworkability\u201d of the rule established by the precedent, (2) the \u201cantiquity\u201d of the precedent, (3) the \u201creliance interests at stake,\u201d and (4) \u201cwhether the decision was well reasoned.\u201d[6]<\/a> \u00a0If the first three of these factors support retaining a precedent, then the Court might do so even if the fourth factor favors overruling it.\u00a0 Put another way, in some circumstances, the Supreme Court might decide to follow a precedent even if the Court believes that the precedent misconstrued the Constitution, a statute, or a treaty.\u00a0 And bound by the doctrine of stare decisis as developed by the Supreme Court, lower federal courts (including my own) must follow the same approach.[7]<\/a><\/p>\n Justice Thomas, however, has a decidedly different view about how to handle incorrect precedent.\u00a0 In his recent concurrence in Gamble v. United States<\/em>,[8]<\/a> Justice Thomas criticized the prevailing multifactor analysis for deciding whether to follow precedent, concisely stating and justifying his contrary position as follows:<\/p>\n In my view, if the Court encounters a decision that is demonstrably erroneous\u2014i.e., one that is not a permissible interpretation of the text\u2014the Court should correct the error, regardless of whether other factors support overruling the precedent. \u00a0Federal 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. \u00a0A 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.[9]<\/a><\/p>\n In further support of this position, Justice Thomas reasoned that stare decisis can have little application in our federal system because the doctrine was designed to sustain common law reasoning.[10]<\/a> \u00a0Justice Thomas explained that \u201cfederal courts primarily interpret and apply three bodies of federal positive law\u2014the Constitution; federal statutes, rules, and regulations; and treaties\u201d and that this reality \u201cremoves 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\u201d establishing the law.[11]<\/a><\/p>\n Other members of the Supreme Court have not adopted Justice Thomas\u2019s views on overruling demonstrably incorrect precedent, but they also have not refuted it. \u00a0Perhaps some of them will find his arguments persuasive in the future.\u00a0 The factors that the Court now applies for deciding whether to overrule precedents do not come from any statute or constitutional provision.\u00a0 Instead, the Justices apparently fashioned these factors based solely on policy considerations.\u00a0 A judge-made multifactor analysis ultimately should not appeal to any Justice who\u2014like Justice Thomas\u2014believes that courts should apply the Constitution and statutes and not invent their own legal tests.<\/p>\n To be sure, departing from the prevailing multifactor stare decisis analysis would require rejecting the reasoning and holdings of many decisions that have employed the multifactor analysis in the past.\u00a0 But only circular reasoning could justify adhering to the prevailing stare decisis doctrine solely on the basis of stare decisis. \u00a0Justice Thomas evidently has not found such reasoning persuasive.\u00a0 If a precedent requires violating the text of statutes and the original meaning of the Constitution, then it should have no force.<\/p>\n II. The Complete Story behind Precedents<\/strong><\/p>\n A second aspect of Justice Thomas\u2019s views on stare decisis is less well known but still both interesting and important. It primarily concerns decisions that a judge must make before reaching the question whether a precedent should be overruled.\u00a0 These decisions concern issues such as what a precedent actually held, whether to read the precedent broadly or narrowly, whether the precedent is on point or distinguishable, whether subsequent cases have limited the precedent, and so forth. Deciding these questions is not always easy. \u00a0A very old precedent, for example, may have arisen in a factual or legal context that is now unfamiliar. \u00a0In addition, the litigants also may be arguing for very different interpretations of a precedent.\u00a0 And in most cases, further research is required to understand how the precedent fits in among other decisions.<\/p>\n For these reasons, Justice Thomas insists on knowing the full story of a case before deciding what to do with it.\u00a0 Justice Thomas has explained his practice as follows:<\/p>\n For some years, I have told my law clerks . . . that we should look at each case like a train car. Before attaching another car to the train of precedents, I am required to know as much as possible about that train. \u00a0Where is it headed? \u00a0What is already in the attached cars? \u00a0Who is the operator? \u00a0What if it is headed in the wrong direction? \u00a0Why is it here? \u00a0If we don\u2019t look, we have no idea who is driving it. \u00a0And for all we know, an orangutan could occupy the driver\u2019s seat. \u00a0No, we are compelled by our oath and our consciences to look.[12]<\/a><\/p>\n Most of the effort \u201cto know as much as possible\u201d about a precedent takes place privately in Justice Thomas\u2019s judicial chambers and is not necessarily visible in Justice Thomas\u2019s opinions.\u00a0 But Justice Thomas has exhibited his approach to uncovering the full story behind a case to generations of law students.\u00a0 In a semester-long seminar that Justice Thomas and I have co-taught at the George Washington University Law School for the past ten years, students read and discuss published accounts of a number of famous constitutional cases, most of which are found in a collection of essays edited by Professor Michael Dorf in a volume called Constitutional Law Stories<\/em>.[13]<\/a>\u00a0 One of the best of these essays is Judge Michael McConnell\u2019s chapter on Marbury v. Madison<\/em>.[14]<\/a> \u00a0Judge McConnell explains the entire factual background leading to the famous dispute in the case, with very interesting details about the political situation and the principal actors.[15]<\/a>\u00a0 He further discusses an array of legal steps that Congress and President Thomas Jefferson had taken to limit the power of the Supreme Court, including canceling a term of the Supreme Court, eliminating judgeships, forcing the Justices to ride circuit, and threatening impeachment.[16]<\/a>\u00a0 All of this background leads to a fundamental reassessment of Chief Justice Marshall\u2019s accomplishment in writing the opinion.\u00a0 Contrary to much received wisdom, Judge McConnell concludes: \u201cMarbury<\/em> was brilliant . . . not for its effective assertion of judicial power, but for its effective avoidance of judicial humiliation.\u201d[17]<\/a><\/p>\n While studying case histories like the one written by Professor McConnell, the students in the seminar become authors themselves. \u00a0Under Justice Thomas\u2019s guidance, the students conduct original research and write the complete story of a Supreme Court case of their own choosing.\u00a0 The goal in writing the seminar essays is not to argue about whether a particular case was correctly or incorrectly decided, but instead just to tell the full story of the case. \u00a0With about 20 students in each class, over the years the students have written, and Justice Thomas and I have now had the privilege of learning, the complete history of more than 200 landmark cases. Demonstrating the high quality of their research and writing, many of our students have published their essays.[18]<\/a><\/p>\n One might think that uncovering the complete story of a precedent would increase a judge\u2019s confidence in making decisions about whether to apply, extend, limit, distinguish, or overrule it.\u00a0 But the reality is more nuanced.\u00a0 Justice Thomas explains that \u201c[k]nowing more often has the paradoxical, if not counterintuitive effect, of magnifying the sense that one knows less than required or at least too little.\u201d[19]<\/a>\u00a0 Every case contains numerous mysteries and loose strings.\u00a0 The increased feeling of uncertainty, however, has a beneficial effect because it promotes caution and necessitates extended contemplation before making a decision. As Justice Thomas puts it, discovering how little a judicial opinion reveals about what actually occurred in an earlier lawsuit imposes \u201cpersonal humility and judicial modesty.\u201d[20]<\/a><\/p>\n Judicial confidentiality prevents outsiders from knowing whether other Justices follow the same approach when confronting precedent. \u00a0While the effort might seem overly burdensome and impractical to some of them, it seems unlikely that anyone would have a theoretical objection to uncovering more information about precedents before following them.\u00a0 Soon after Justice Thomas and I began teaching the seminar, a very inquisitive student asked why it was important to know the whole story of the case.\u00a0 Justice Thomas answered him with a question of his own: \u201cWhy would you want to know less?\u201d<\/p>\n III. Conclusion<\/strong><\/p>\n As discussed above, the other members of the Supreme Court may or may not decide to follow Justice Thomas\u2019s views with respect to incorrect precedent and the study of the complete story of precedents. \u00a0But these two observations about Justice Thomas\u2019s stare decisis jurisprudence should affect how litigants at the Supreme Court write their briefs and make their oral arguments.\u00a0 To persuade Justice Thomas with a precedent-based argument, litigants first should place the precedent in context, richly describing the entire background of the decision, so that Justice Thomas knows where it came from and understands the limitations of its holding.\u00a0 And if they want Justice Thomas to follow the precedent, they must convince Justice Thomas that the precedent\u2019s construction of a statute or constitutional provision is not \u201cdemonstrably incorrect.\u201d<\/p>\n <\/p>\n <\/p>\n [1]<\/a> Judge, U.S. Court of Appeals for the Armed Forces. The author was a law clerk for Justice Thomas in the October 1991 Term. Since 2011, the author has also co-taught a constitutional law seminar at the George Washington University Law School with Justice Thomas.<\/p>\n [2]<\/a> See infra<\/em> part I.<\/p>\n [3]<\/a> See infra<\/em> part II.<\/p>\n [4]<\/a> Stare decisis<\/em>, Black\u2019s Law Dictionary (11th ed. 2019).<\/p>\n [5]<\/a> Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 864 (1992).<\/p>\n [6]<\/a> Montejo v. Louisiana, 556 U.S. 778, 792\u201393 (2009). \u00a0See also Payne v. Tennessee, 501 U.S. 808, 828 (1991) (explaining that \u201cconsiderations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved\u201d and that \u201cthe opposite is true in cases such as the present one involving procedural and evidentiary rules\u201d (citations omitted)).<\/p>\n [7]<\/a> See, e.g.<\/em>, United States v. Sills, 56 M.J. 239, 241 (C.A.A.F. 2002) (citing Payne v. Tennessee, 501 U.S. 808, 827 (1991)).<\/p>\n [8]<\/a> 139 S. Ct. 1960, 1980\u201389 (2019) (Thomas, J., concurring).<\/p>\n [9]<\/a> Id<\/em>. at 1984.<\/p>\n [10]<\/a> Id.<\/em> at 1982\u201384.<\/p>\n [11]<\/a> Id. <\/em>at 1984.<\/p>\n [12]<\/a> Clarence Thomas, The Fallibility of Judging<\/em>, N.Y. L.J., June 2, 2015.<\/p>\n [13]<\/a> Constitutional Law Stories (Michael C. Dorf ed., 2d ed. 2009).<\/p>\n [14]<\/a> Michael W. McConnell, The Story of Marbury v. Madison<\/em>, in Constitutional Law Stories, supra<\/em> note 13.<\/p>\n [15]<\/a> See id. <\/em>at 14\u201319.<\/p>\n [16]<\/a> See id.<\/em> at 19\u201322.<\/p>\n [17]<\/a> Id.<\/em> at 31.<\/p>\n [18]<\/a> See, e.g.<\/em>, Andrew J. Smith, The Supreme Court’s About-Face in Greer v. Spock<\/em>, 2020-3 Army Law. 54; Sean M. Sherman, Eckhardt v. Des Moines: The Apex of Student Rights<\/em>, 88 Geo. Wash. L. Rev. Arguendo 115 (2020); Christopher E. Bailey, The Extraterritorial Application of Constitutional Law: United States v. Verdugo-Urquidez<\/em>, 36 B.U. Int\u2019l L.J. 119 (2018); Brittany Warren, The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial<\/em>, 212 Mil. L. Rev. 133 (2012).<\/p>\n