Judge Thomas Says U.S. Supreme Court Shouldn’t Uphold ‘Demonstrably Erroneous’ Precedents

Justice Thomas Says U.S. Supreme Court Shouldn’t Uphold ‘Demonstrably Erroneous’ Precedents, Prompts References to Roe v. Wade

BY MIMI NGUYEN LYJune 18, 2019 Updated: June 18, 2019Share

Justice Clarence Thomas on June 17 said that the U.S. Supreme Court should not feel obligated to uphold precedents in reaching decisions, prompting observers to express concerns about the potential overturning of the 1973 Supreme Court ruling, Roe v. Wade.

Thomas said in a case opinion (pdf) that the court should reconsider its standard for reviewing precedents. He said the court’s nine justices should not uphold precedents that are “demonstrably erroneous.”

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

In his opinion, Thomas wrote that demonstrably erroneous decisions should not be “elevated” over federal statutes, as well as the Constitution, merely because they are precedents.

He wrote that that federal courts should uphold the Constitution, even if it meant that precedents set by other federal courts had to be overturned.

“In our constitutional structure, our rule of upholding the law’s original meaning is reason enough to correct course,” Thomas wrote.

The Supreme Court now has a 5-4 conservative majority, and Thomas is among its most conservative justices.

The 70-year-old judge joined the court in 1991 and is its longest-serving current justice.


Several legal experts commented on the justice’s opinion and noted the timing of his opinion in view of recent laws passed by select states, that have the potential to challenge Roe v. Wade.

Kristen Clarke, the President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law, told Fox News: “One can’t ignore the timing of Justice Thomas’s concurring opinion which comes at a moment when we are seeing a coordinated and relentless attack on Roe v. Wade across the country.

“The laws that have been adopted in several states violate the Court’s settled precedent in Roe. In his concurring opinion, Justice Thomas has made clear his willingness to reject precedents that he personally deems incorrect, a position that unnecessarily politicizes the Court.”

She added: “Justice Thomas’s view is fundamentally at odds with the way in which the Supreme Court has generally operated … It is a view that threatens to further undermine the integrity of the Court and weaken the stability of the institution.”

Jonathan Entin, a law professor at Case Western Reserve University in Cleveland, said in an interview with Reuters: “Thomas says legal questions have objectively correct answers, and judges should find them regardless of whether their colleagues or predecessors found different answers … Everyone is concerned about this because they’re thinking about Roe v. Wade.”

Roe v. Wade

The 1973 Roe v. Wade decision established that it is part of a woman’s “right to privacy” to undergo abortion (pdf). States can only ban abortion after “viability,” meaning “potentially able to live outside the mother’s womb, albeit with artificial aid.”

The Supreme Court’s 1973 decision said that if unborn children are persons, then they have the right to life. The ruling determined that unborn children are not persons, but acknowledged that “if this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’s right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”

At one point in his case opinion, Thomas mentioned the 1992 Planned Parenthood v. Casey case, which upheld Roe v. Wade. The decision said that states cannot place an undue burden on women’s access to abortion. Thomas, a member of the court at the time, dissented from the Casey ruling.

Double Jeopardy Case

Thomas’s opinion came in Gamble v. United States, a double jeopardy caseover whether the federal government and states can prosecute someone separately for the same crime. In the case, an Alabama man had lost his rights to own a gun in 2008 when he was convicted of robbery. Years later when the man, Gamble, was found with a firearm, he was sentenced to a year in prison under the state’s felon-in-possession law. But then Gamble was again soon later charged by a federal prosecutor with violating a similar national law, which extended his sentence by another four years.

Gamble’s lawyers argued that such double prosecutions stood in conflict with the man’s protection against double jeopardy under the Fifth Amendment—that is, the right against being tried twice for the same crime.

Since the mid-19th century the double jeopardy amendment has only applied within the same sovereign legal system, such as a state court or federal court.

But the justices ruled against Gamble, and cited over 170 years of precedent that allow double prosecutions under the “dual-sovereignty doctrine,” which sees states and federal governments as separate sovereign entities.

In this case, Thomas joined the majority in its 7-2 ruling, which says that state and federal governments can prosecute a person for the same crime without violating the Constitution’s double jeopardy rule.

He wrote, “Because petitioner and the dissenting opinions have not shown that the Court’s dual-sovereignty doctrine is incorrect, much less demonstrably erroneous, I concur in the majority’s opinion.”

‘Let the Decision Stand’

Thomas’s concurring opinion focused on “stare decisis,” a Latin term meaning “let the decision stand,” referring to the legal principle that U.S. courts should not overturn precedents without a special reason.

While stare decisis has no formal parameters, justices deciding whether to uphold precedents often look at such factors as whether they work, enhance stability in the law, are part of the national fabric, or promote reliance interests, such as in contract cases.

“Our judicial duty to interpret the law requires adherence to the original meaning of the text. For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous.”

He wrote earlier, “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.”

“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,” he added.

“Federal 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,” he wrote. “A 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.”