Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
In the New Yorker profile of Justice Clarence Thomas that a number of us have written about, Jeffrey Toobin asserts the following:
In practical terms, Thomas pays far less deference to prior rulings of the [Supreme] court than his colleagues do. As he put it.., "If it's wrong, it's wrong, and we are obligated to revisit it." This is a different approach from the traditional conservative position, which stresses the importance of stare decisis--of relying on precedent. As Roberts [now Chief Justice Roberts] put it in his confirmation hearings, "Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system."
Justice Thomas, at odds with conservative jurisprudence? Not so fast.
It took me awhile to find the transcript, but consider my 2003 Uncommon Knowledge interview with the conservative jurist's conservative jurist, Judge Robert Bork.
We discussed the 1992 abortion case, Planned Parenthood v. Casey. In Casey, I noted, Court rejected a portion of its reasoning in the 1973 case Roe v. Wade, but it refused to overturn Roe v. Wade altogether. Why? Stare decisis--the doctrine of deferring to precedent. The following exchange ensued:
Peter Robinson: Stare decisis, the need to insure the stability of the law by deferring to precedent. That was reasonable of the Supreme Court, wasn't it? Isn't that something that a conservative--
Judge Bork: No, no. It wasn't reasonable there because they did, in fact, change Roe. They didn't adhere to Roe.
Peter Robinson: They did heave a lot of it out?
Judge Bork: Yeah. They changed it. And secondly, in constitutional law, precedent is less important than anywhere else. If you’re talking about a statute or a common law decision, then Congress can say we don't like what you've done and change the law. But if the [Supreme] Court makes a bad mistake about the Constitution, nobody can cure it except the Court. And that's why precedent is less important in constitutional law than it is elsewhere.
Peter Robinson: So at any moment in American history, the nine Justices of the Supreme Court have to be especially alert to the possibility that their predecessors erred? They have to be especially alive to the possibility that they might need to overturn a previous decision?
Judge Bork: That's right.
If Judge Bork and Justice Thomas take the same position--if they both hold that the Supreme Court has a higher duty to the Constitution itself than to precedent--then the position can't very will stand at odds with conservative jurisprudence.
Or can it?
Richard Epstein? John Yoo? Adam Freedman? Once again, as I so often do, I seek your counsel.
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Sep '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
I'm not trying to toot my own horn but somewhere in the past 2 years I read the vibe that Paul Rahe and others ferreted out that Clarence Thomas was the real sleeper on the Supreme Court. I first stumbled on it purely by accident during the Bush-Gore hanging chad fiasco when I read his writings on the Texas Sodomy law case before the courts.
Liberals had picked up on it as well. It could have been a stray writing of Jeffrey Toobin himself, but somewhere someone who was a self declared liberal mentioned Clarence Thomas in a favorable light. I remember it because I muttered a Ricochet non family friendly unmentionable epithet from the Anglo Saxon netherworld when I read it.
Aug '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
What's the better view ? Is it from the top of the Hoover Tower or from the shoulders of the giants you describe ?
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
While I'm not Epstein, Yoo, Freedman, nor Prancer nor Vixen, etc., I did stay at a Holiday Inn Express once. And from that lofty perch, I remember that Justices take an oath of fidelity to the Constitution, not to Precedent. Under the circumstances, when a prior decision is contrary to Constitutional limitations, the answer seems self evident to me. But again, I'm just me.
By the way, Peter, I seem to remember a similar discussion in your Uncommon Knowledge interview with Justice Scalia that prompted me to first contact you. I need to go back and view that one again.
May '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Part of what's going on here is the confusion borne by the multiple definitions of the word "conservative". What's conservative: upholding the status quo, or the status quo ante? Unfortunately for those who want to make clear distinctions, both are.
Edited on September 2, 2011 at 3:37amJul '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Why is "precedent" considered "conservative jurisprudence[?]" Is it because Justice Roberts had a few things to say about it?
"[C]onservative jurisprudence" is the battle between Right and wrong regardless of Who said what when.
Jun '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Peter Robinson
Richard Epstein? John Yoo? Adam Freedman? Once again, as I so often do, I seek your counsel. ·
and Mark Levin would also be wonderful to chime in.
Apr '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
It has always been interesting to me that while the left claims to support stare decisis. The landmark cases they will point to are Brown, Roe, and the new deal cases all of which to my understanding are significant departures from precedent. I also imagine that their respect for precedent won't extend to Heller, McDonald, or Citizen's United. It is always more about results than reasoning. I suspect that drives them to now promote precedent as a mechanism for maintaining their gains.
Edited on September 2, 2011 at 3:48amMar '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Raxxalan: It has always been interesting to me that while the left claims to support stare decisis. The landmark cases they will point to are Brown, Roe, and the new deal cases all of which to my understanding are significant departures from precedent. Sep 1 at 6:47pm
Edited on Sep 01 at 06:48 pm
The Left loves Stare Decisis when it protects left wing objectives. Otherwise... not so much.
Me, I say to hell with the whole concept of stare decisis. All SCOTUS cases should be decided on the basis of one thing and one thing only: Are they Constitutional? Do they contradict the Constitution or not?
Jul '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Heck, it was Dred Scott v Sandford that launched the Republican Party. Who says We're sticklers for "precedent[?]"
Aug '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Raxxalan: It has always been interesting to me that while the left claims to support stare decisis. The landmark cases they will point to are Brown, Roe, and the new deal cases all of which to my understanding are significant departures from precedent. I also imagine that their respect for precedent won't extend to Heller, McDonald, or Citizen's United. It is always more about results than reasoning. I suspect that drives them to now promote precedent as a mechanism for maintaining their gains. · Sep 1 at 6:47pm
Edited on Sep 01 at 06:48 pm
I read this in an article from Powerline Blog
At the outset of his discussion of the case, Professor Kull makes this astounding observation: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”
Brown effectively overturned Plessy, but not key legal findings.
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Toobin is half right. Thomas is more aggressive in urging the court to overturn precedent than are Scalia and Roberts. But he's wrong to refer to rigid stare decisis as the "traditional conservative position." Indeed, it makes no sense to refer to stare decisis that way -- it's not an ideological position, but an expression of the common law's preference to follow precedent. And I agree completely with Bork that stare decisis should not be a strong command for a constitutional court. Basically, Dave hits it on the head -- the court's mission is fidelity to the Constitution. To uphold a bad precedent in the name of stare decisis is not "conservative." It's a dereliction of duty. I hope to write more on this, but in short, Toobin's "profile" is a hit piece in my opinion. The bit about stare decisis is in line with other passages that try to paint Thomas as a dangerous radical, i.e., look, he's even radical by conservative standards. Nonsense.
Apr '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Thomas is, of course, the greatest justice on the Court. In defense of my view that Bush Jr. selected the finest SCOTUS appointments since McKinley (I don't know enough about the 19th century justices to judge and C18 jurisprudence is non-comparable), conservatives can support precedent-following "faint hearted originalists", too.
"Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system."
Roberts was not wrong to say this. It's not only radicals in the literal meaning of the term who can be conservative. If, for example, Social Security were to be found to be unconstitutional (as I suspect Thomas would find, given a suitable case, Helvering v. Davis being as weak as it is), an amazing amount of harm would be done to individual people and to the republic and Constitution. Gently moving the Constitution in the right direction is better than having Roe v. Wade style dramatic shifts on a regular basis (I'm assuming no one believes that an era of conservative radicalism would not be followed by an era of liberal radicalism of the sort Obama wanted).
May '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
The English Common Law tradition, which our laws are based on and had long contributed to, is based on stare decisis .
You can't say that it is a politically conservative concept. Judges for over a millenium have defined, redefined, and re-emphasized past interpretations of the law according to their whims and personal beliefs and have struggled mightily to cloak those whims in some form of believable logic. This continuous redefinition of the law is how our legal system is designed to work.
The difference is that we have a Constitution that trumps common law. Stare decisis should not have any power over enacted laws, because the text of a statute or other enacted law such as the Constitution trumps Common Law.
Therefore, stare decisis should have little power over Constitutional interpretation. Unlike Common Law, you always have a rock to stand on in the written text. In Common Law you have a vague development of law that grows and theoretically matures into a more perfect understanding of natural law. Common Law doesn't have that text to fall back on. Constitutional Law should always refer back to the text.
Edited on September 2, 2011 at 4:12amRe: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Thank you, Adam! And with that, I'll have another iced tea. Oh waitress...
Dec '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Astonishing how often our Constitution hangs by a thread.
What if there had been a better defense against the assault on Bork?
And to recall that Justice Thomas was nearly Borked by a hair.
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Dave Carter
Thank you, Adam! And with that, I'll have another iced tea. Oh waitress... · Sep 1 at 7:07pm
Thanks, Adam. I've long inclined toward the Dave Carter school of constitutional jurisprudence. If you do, too, that settles it.
Sep '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Peter Robinson
Dave Carter
Thank you, Adam! And with that, I'll have another iced tea. Oh waitress... · Sep 1 at 7:07pm
Thanks, Adam. I've long inclined toward the Dave Carter school of constitutional jurisprudence. If you do, too, that settles it. · Sep 1 at 8:00pm
A hole in the other side's argument you could drive a truck through.
May '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Actually, no. That decision was made by the USSC in 1857. The Pubbies began in 1854 and had their first Pres. nominee (John C. Fremont) in the 1856 election. The Republican party was largely a reaction to the Kansas-Nebraska Act.
May '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Dave! Dave! He's our man! If he-- oh. wait. It's not that kind of thread, is it? Ah spank.
Jul '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Keith Preston
. The Pubbies began in 1854 and had their first Pres. nominee (John C. Fremont) in the 1856 election. \ Sep 1 at 8:33pm
I stated "launched," not "began." Words mean things.