Why Justice Thomas Is Wrong about Precedent

This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v. United States, the case on the scope of double jeopardy. There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous.” Thomas recognizes that judges in England at the time of the Constitution applied a more robust doctrine of stare decisis, but rejects the notion that federal judges have the authority to follow a similar doctrine today in statutory and constitutional cases. For Thomas, the difference is that English common law was judge-made, but “we operate in system of written law in which courts need not—and generally cannot—articulate the law in the first instance.”

The problem with Thomas’ historical argument is that judges in England also interpreted written law in the form of statutes. And parliamentary supremacy debarred them from “articulating the law in the first instance” in that context as well. Nevertheless, English courts regularly applied stare decisis to matters of interpreting the written law of statutes. Thus, it is not true that the change to written law put the traditional use of stare decisis outside the scope of judicial power that judges possess according to Article III.

Here are a few examples of stare decisis in statutory cases from English case law in the decades before the Constitution. In Lloyd v. Tench (1750) the question was whether a niece, nephew and aunt should take per stirpes (where each branch of a family gets an equal share of inheritance) or per capita (where each person gets an equal share). A statute governed the appropriate distribution in the absence of a will. The Master of the Rolls, Sir John Strange, noted that the advocates had failed to cite prior law, but that a series of cases interpreting the statute made clear that all individuals should take an equal share. “After two such authorities, the question is at peace and could I entertain a doubt in my own mind (which I do not) I should think myself bound by stare decisis.” Similarly, in the 1754 case of Parker v. Drew, the King’s Bench decided on the basis of stare decisis and did not consider anew the way to interpret a statute that relaxed the requirements of a habeas question.

Moreover, judges yielded to prior precedent in statutory interpretation even when they thought the previous cases were decided incorrectly. In Ellis v. Smith (1755), the question was whether a testator’s declaration before three witnesses that it was his will and testament is equivalent to his signing the will to make it effective under the statute of frauds. Precedent favored that proposition. As Sir John Strange stated “The case . . . has been considered at so many times and has so many authorities that it may be considered as settled.” Sir John went on to say “Yet I think it a dangerous determination, and destructive of those barriers the statute erected against perjury and frauds.” Other judges in the case, including Chief Baron Parker and Chief Justice Willes, also suggested that they might have come out the other way but for the precedent.

Finally, in Bishop of London v. Fytch (1762), the great Lord Mansfield acquiesced in interpretation of the statute of simony which permitted people to be admitted to benefices even if they had given their bond to resign whenever their patron asked them to do. That assurance seems quite against the purpose of the statute against the buying and selling of ecclesiastical privileges, and Mansfield recognized that much could be said against it. “But,” he continued “it cannot now be argued. We are bound by the decisions if we thought them ever so wrong.” (emphasis added).

Thus, because English courts did apply rules of precedent to statutes, Thomas has not rebutted the powerful argument that the Constitution does not displace the authority of the federal judiciary to apply precedent to written enactments, including the Constitution. Thomas does not dispute that the federal courts can apply precedent in cases of federal common law, like admiralty law. That authority comes from the same place from which comes the authority to apply precedent to written law—the judicial power. This legal term in Article III gives judiciary the traditional authority exercised by judges, which included the authority to apply precedent to written law. Indeed, Thomas acknowledges that the judicial power permits him to follow precedent that is not demonstrably erroneous if he believes it is not the best interpretation of the Constitution.

To be clear, precedent as applied to the Constitution would not be here displacing the higher law of the Constitution any more than it had displaced statutory law. It would simply govern how the judiciary decides what law is, at least in the absence of precedent rules established by the legislature.

Nor would constitutional precedent likely look like the strong form of precedent that English courts applied to the statutory decisions. Because precedent is a common law doctrine, courts can and should consider the relevant differences between the Constitution and ordinary legislation in deciding what precedent to apply. One salient difference is that the Constitution is far harder to amend and thus it is harder for the people and their representatives to modify the results of the Supreme Court’s interpretation of a constitutional rather than a statutory provision. The Court’s current precedent rules are rightly stronger for constitutional decisions that for statutory decisions. One of the oddities of Thomas’s position is that for him, it makes no difference whether a statutory or constitutional case is up for reconsideration.

In Mike Rappaport’s and my view,  precedent rules should indeed be less protective of wrong constitutional decisions than they have become in the modern era. Currently, the court has an effective presumption in favor of precedent. But that presumption gives insufficient weight to the benefits of following the original meaning. The Court has also applied the doctrine inconsistently, as a majority effectively dispenses with this presumption on an ad hoc basis when it wants to overrule an opinion. Moreover, by extending this presumption to precedents that make no bona fide attempt to even locate the relevant original meaning (I am talking about Roe v. Wade, among others), it reduces the incentive to write originalist opinions in the first place. The results-oriented nature of the current doctrine of stare decisis and its failure to encourage judicial fidelity to the original meaning provide powerful reasons for modifying the doctrine.

The question of how to frame precedent rules that make the optimal tradeoff between the traditional values of precedent and following the original meaning in constitutional cases is a difficult one. Rappaport and I have begun but not finished that kind of inquiry. But whether you agree with the rules we have proposed or not, that tradeoff is the essential question. Thomas’s dismissal of common law precedent in the context of written law is a distraction, based on a misreading of history.

Reader Discussion

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on July 25, 2019 at 10:26:55 am

Being outside the legal realm, the concept of stare decisis, especially when applied to what the legal system itself considers a bad precedent, seems bizarre.

I can think of few if any other professions for which a clear error in policy/procedure/practice can not only be affirmatively maintained, but protected from change!

It's as if once bleeding with leeches was found to be ineffective as a medical treatment, physicians nonetheless were forced to continue its practice because of "stare decisis" type rules...

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OH Anarcho-Capitalist
on July 25, 2019 at 12:03:52 pm

But Thomas agrees that stare decisis should govern in constitutional and statutory cases where the precedent is not demonstrably wrong. In order to prove that courts can follow a clearly erroneous interpretation of a statute, you'd have to show us that your cited decisions were demonstrably wrong. It would be very rare for a court to clearly misinterpret a statute-if it is so clearly wrong, how could a court have made that mistake?-unless it wasn't really interpreting the text of the statute, as courts in the twentieth century often behaved.

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on July 25, 2019 at 12:12:26 pm

What makes a precedent erroneous according to Thomas is whether it corresponds to his notion of originalism. That is not the the understanding of what makes a precedent erroneous according to the Common Law. According to the Common Law a precedent is erroneous if it is inconsistent with deep principles of the law that are implicit in precedents other than the one that is being overturned.

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David Glasner
on July 25, 2019 at 13:57:11 pm

Nah. Stare decisis is basically Burkian conservatism: Keep doing what you've been doing until the appropriate authority--typically the legislature--deliberates had decides to make a change.

Who has the authority to rule on the effectiveness of leeches? And have they done so? If so, then physicians should act accordingly. If not, then the fact that OH Anarcho-Capitalist has made a factual assertion about leeches might not be regarded as a sufficient basis to change a policy.

At least three policies underlie stare decisis:

First is separation of powers/restraint: The Judicial is the least democratic branch, and should seek to limit its own powers where a democratic branch is more suited to act. Judges must sometimes address a matter of first impression (by definition--no matter could ever become "settled law" until the matter has been contested and, well, settled). But after that point, the matter is (arguably) settled. If the relevant authority (e.g. legislature) thinks the judge got it wrong, the legislature should act. But to ask judges to constantly second-guess themselves and each other invites unrestrained judicial discretion.

Second, administrative efficiency: If we did all the work to analyze the issue once, why re-invent the wheel?

Third, predictability/finality: We want people to feel as if the legal framework is stable and predictable so that people can make appropriate plans, and to encourage those who are dissatisfied with the law to pursue remedies at the legislature. But without stare decisis each party would have ample reason to litigate because every issue is, in perpetuity, a matter of first impression. Imagine you want to build a building, but there are neighbors who will contest whether you have the appropriate permits. Sure, courts rejected these objections when they were raised by Neighbors A, B, and C. But there are basically no limits to the number of plaintiffs who might be prompted to file an objection. If there were no stare decisis, who would ever have the confidence to begin construction?

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on July 25, 2019 at 18:21:14 pm
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Prof. Joe
on July 26, 2019 at 12:41:54 pm

My degree is in elementary education, and I did complete the coursework necessary to obtain a Paralegal Certificate, so I am not familiar with a multitude of legal cases. I can, however, think of three examples where erroneous precedent led to an erroneous outcome that was not consistent with our Founding Judeo-Christian principles, and thus the spirit of our Constitution. All three cases involve the denial of the essence of personhood:

1.DRED SCOTT, which denied the personhood of Dred Scott, in order to justify slavery.

2.ROE V. WADE, which denied the personhood of certain sons and daughters residing in their mother’s womb, in order to justify abortion, the intentional destruction of the life of a beloved son or daughter.

3. OBERGEFELL ET. AL. V. HODGES, which by reordering man according to sexual desire/inclination/orientation, sexually objectified the human person, and denied the inherent Dignity of the essence of personhood, being a beloved son or daughter, brother or sister, husband or wife, father or mother, in order to justify the engaging in of demeaning sexual acts that regardless of the actors or actor’s desires, deny the inherent Dignity of the human person.

I am also wondering if this statement:
“There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous.”
Should read:
There , Thomas affirms stare decisis for both constitutional and statutory cases, except in cases where the precedent is “demonstrably erroneous”. A “demonstrably erroneous” precedent would necessary result in an error in both Substantive and thus Procedural Due Process Law.

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on July 26, 2019 at 13:03:24 pm

“Who has the authority to rule on the effectiveness of leeches?”

As someone who has a familiar history of Hemochromatosis, a genetic disease that in 1996 was considered rare, but through research, has been determined to be quite common, I am fully aware of the fact that excess iron in the body can be a catalyst for many diseases, including, neurological diseases, such as Parkinson’s Disease. Why rule on the effectiveness of leeches, when it is possible to have blood drawn in a medical facility, not only controlling one’s level of iron, but one could also assume, one’s blood pressure.


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on July 26, 2019 at 13:21:54 pm

Do you mean, David, like, respect for the Sanctity of the human person and thus respect for the inherent Dignity of human personhood, which begins first and foremost at the moment of conception, for every son or daughter of a human person?

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on July 26, 2019 at 13:38:39 pm

This is not to say there is no longer a use for leeches in medicine, only that some uses for leeches are no longer necessary, as demonstrated by the fact that “leeching”, in some instances, has been replaced with other medical procedures.

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on July 26, 2019 at 14:22:45 pm

What are we to make of McGinnis' presentation of Justice Thomas' position?

"There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous.” "

One could conclude from McGinnis's phrasing two contradictory assumptions:
1) That Thomas is herein REJECTING stare decisis for COTUS and statute
2) The ASSUMPTION *from* Thomas's phrasing strongly indicates that ONLY when a precedent is demonstrably erroneous - meaning, still, that the precedent MUST be demonstrably erroneous.

And the THIRD, but unspoken assumption (from Thomas) is that MOST precedents are NOT "demonstrably erroneous."

Are we dealing with an overheated TeaPot here, kiddies?

Yes, Thomas may be intimating a "lessened" deference to stare decisis but it is neither so clear nor so "broad" as McGinnis would have us believe.

And as for case law that IS demonstrably erroneous, WHY would one wish to respect. Note that Thomas is qualifying what precedents are to be denied deference "the demonstrably wrong ones - not ones that do not fit into an *originalist* analysis which the Good Justice recognizes has as many flavors as Baskin Robbins.

what flavor ice cream do you want McGinnis?

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Image of gabe
on July 26, 2019 at 14:42:08 pm

I am reminded of this;


I apologize for going off on a tangent about iron, Professor McGinnis.

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on July 28, 2019 at 17:36:42 pm

Justice Thomas was not correct in his idea about stare desisis but was not lost in the woods.

Roe.v Wade will very soon be updated or will be VIOLENTLY ignored.
A Fetus is either viable after 12weeks and detection of a heartbeat or it is not.
Arkansas made thiis scientific fact limit elective Fetus killing but US Courts were not willing to allow this.
Artificial abortion is a human right interwoven with autonomy "for a time" and Roe overprotected this fundamental right to privately choose to keep or kill, The right to choose to kill was justified as privacy.

Just as broadcast communications should be regulate/d by the FCC per Pacifica - et al.; when pregnancy becomes obvious the PRIVATE right to choose killing the Fetus can't still exist. Killing a Fetus the public is aware of is against natural law. Humans have a genetic or natural predisposition to protect any Fetus we know exists. Neither privacy or autonomy justify Fetus killing when the public can tell the Fetus is killed.

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Curtis J. Neeley Jr.
on July 30, 2019 at 16:39:34 pm

Well, this is going off-topic, but what the hell.

Roe.v Wade will very soon be updated or will be VIOLENTLY ignored.

This is hardly new, right? We've seen plenty of people violently attacking abortion clinics. Legal change is pretty irrelevant to people who are willing to resort to extra-legal remedies.

A Fetus is either viable after 12weeks and detection of a heartbeat or it is not.
Arkansas made this [a finding to] limit elective Fetus killing....

Interesting thought. If the state of Arkansas has made the finding that a fetus is viable as of 12 weeks, then there should be no prohibition on Arkansas women having abortions before then--nor on Arkansas women having "Cesarean sections" after that point and transferring their fetuses/babies to the state for adoption, right?

Except, of course, there's this:

According to experts at the American Academy of Pediatrics (AAP), the survival rate is 80 percent for extreme preemies (born before 28 WEEKS). That rate drops about 10 percent for each week earlier a baby is born…. [You do the math.]

Because their respiratory systems aren’t fully developed, these tiny babies need help breathing. And since the ability to coordinate reflexes like sucking and swallowing doesn’t kick in until around 34 weeks gestation, they aren’t able to eat on their own; most receive nutrition and fluids intravenously (through an IV). Most are extremely low birth weight, so they’ll need to gain a few pounds. Additionally, extreme preemies are at an increased risk of complications, including respiratory distress syndrome (RDS, a lung disorder), hypoglycemia (low blood sugar), hypothermia (difficulty staying warm), jaundice, urinary tract infections, and pneumonia, all of which can increase the amount of time a baby needs to stay in the hospital….

Even extreme preemies without complications are typically ready for discharge two to three weeks before their due date. But babies who have endured health complications as a result of their preterm status, such as breathing problems or difficulty gaining weight, may have to stay in the NICU well after their birth date. Generally speaking, the earlier the baby is born, the more likely she will have to stay past her due date.

But if Arkansas has made a finding of viability at 12 weeks, why should mere facts stand in the way?

Fortunately the State of Arkansas is rich and happy to tax its affluent citizens--the Waltons and the Tysons--heavily to support social services such as the fleets of neo-natal intensive care units they're gonna need. Oh, wait, this just in: Arkansas is poor, unwilling to tax its rich citizens, and barely has any social safety net. For example, even though the feds pick up 90+% of the cost of expanding Medicaid, Arkansas didn’t choose to do so until 2018, and then did so only for citizens meeting a work requirement. And then the state required participants to demonstrate compliance with the work requirement on-line—even though the state has the lowest rate of internet access. Six months after adopting the new requirement, 20% of those on the program had lost health insurance coverage.

Given these facts, where will Arkansas find the political will--let alone the money--to maintain all those premature babies in NICU units for 6+ months? It's all well and good to proudly proclaim your values--when you ask someone else to bear the costs. But just let the good folk of Arkansas discover that they must bear the cost of their own value system, and we'll see what happens next.

One salutary effect of markets: They're remarkably unsentimental.

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