Clarence Thomas, Stare Decisis, and Bad Precedent

The Supreme Court this week upheld an 11th Circuit Court of Appeals ruling in Gamble v. United States. Terrance Gamble, a convicted felon, pled guilty to violating Alabama’s law prohibiting felons to be in possession of firearms. He was then indicted by federal prosecutors for violating federal law that prohibits felons to be in possession of a firearm.

Gamble moved to have the federal charge dismissed stating that the federal charge violated his 5th Amendment rights because the federal charge exposed him to double jeopardy for the “same offense.” The court ruled 7 to 2 (with Justices Ruth Bader Ginsburg and Neil Gorsuch dissenting) that the “dual sovereignty doctrine” applied because while it may have been the same act, it was two different offenses – a state offense and federal offense. Justice Samuel Alito who wrote the court’s opinion argued that the historical record, what federalism means, and 170 years of court precedent – appealing to the doctrine of stare decisis (let the decision stand) did not demonstrate that the founders saw federal and state charges being the “same offense” when the 5th Amendment was ratified.

While this case presents a fascinating constitutional issue, Justice Clarence Thomas’ discussion of stare decisis in his concurring opinion was eye-opening.

He pointed out the proper role of stare decisis, namely, the Court is not obligated to follow bad precedent.

This is something I’ve always believed, but this is something you never read in an opinion by a Supreme Court Justice. You certainly don’t hear anything like this said during a confirmation hearing for any judge or Supreme Court justice. They all say they respect precedent.

“In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law,” Thomas wrote.

“(T)he Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises ‘force’ and ‘will,’ two attributes the People did not give it,” he added.

He noted the current application of stare decisis may make sense in a common-law legal system where there is no written law, but that is not the case in our federal system where its role is to faithfully interpret the Constitution and laws enacted by Congress and the President. Under the federalist system, Thomas explains, the Courts lack the force (the power of execute laws) and will (the power to legislate).

Quoting Federalist 78, Thomas wrote, “The Judiciary thus may not ‘substitute [its] own pleasure to the constitutional intentions of the legislature.'”

He also notes that the judicial branch does not have the power to alter the law, but merely to expound upon it.

“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,” Thomas wrote.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” he added.

“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,” Thomas wrote.

“Our judicial duty to interpret the law requires adher- ence to the original meaning of the text. For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous. Because petitioner and the dissenting opinions have not shown that the Court’s dual-sovereignty doctrine is incorrect, much less demon- strably erroneous, I concur in the majority’s opinion,” he concluded.

This concurring opinion gives us insight into how Thomas will look at any case challenging Roe v. Wade and it is encouraging.