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.