“With respect to your recent column on Justice Clarence Thomas and his apparent lack of respect for precedent and the doctrine of stare decisis, doesn’t he risk having a future Court treat his position in the same way? In other words, what’s good for the goose is good for the gander?” – James
Hi James,
Yes. If a future Supreme Court majority overturns any Thomas-authored precedents, then it will be hard to take any mourners of those precedents seriously. At least, it will be hard to take them seriously if they grieve the loss of precedent for precedent’s sake.
Perhaps they would make a more nuanced argument — say, that discarding the hypothetical Thomas-authored ruling is wrong because it betrays the underlying originalist principles that have guided his decision-making. Of course, the strength of any such argument would depend on the case that’s being overturned and the rationale offered by the hypothetical future court majority for overturning it.
One of the reasons it’s tough to speculate here is that, as I noted in the column you reference, Thomas has authored relatively few high-profile precedents in his nearly record-setting tenure of 34 years on the court.
His 2022 Bruen ruling that further expanded gun rights stands out, but even there, the GOP-appointed colleagues who joined him have already seemed to walk it back somewhat in a follow-up ruling.
Thomas has staked out his idiosyncratic views in separate concurring and dissenting opinions, of which he is a prolific writer. But unless he leads his colleagues in a new series of controversial rulings before he leaves the bench, then there might not be many chances for this scenario to materialize.
Now, if we’re talking about any decisions Thomas has joined in his three decades on the court, then that raises plenty of cases a differently composed court would be happy to set aside. The 2022 Dobbs decision that overturned Roe v. Wade’s abortion protections comes to mind. (In a prime example of Thomas going further than his colleagues, he joined Justice Samuel Alito’s majority opinion overturning Roe but wrote a separate concurrence to argue for targeting even more precedents in the future, including those protecting contraception, same-sex marriage and sexual conduct with members of the same sex. Alito’s majority opinion chided the Democratic-appointed dissenters for “stok[ing] unfounded fear that our decision will imperil those other rights.”)