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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Jan '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Precedent matters because of interpretation. The more laws have to be interpreted, i.e., the more complex or interrelated they are, that's when precedent comes in handy. For instance, the code of employment law is massive. Sure, in a perfect world every law would mesh smoothly, and every regulation would be aligned properly, but they don't, so we do need umpires to make real world (i.e., ad hoc) decisions.
Now without stare decisis, it would be like the strike zone in baseball. You'd have to re-adjust every decision whenever a new judge came along, because every judge would ad hoc differently. You know what that would mean? More lawyers. And really, who wants that?
But when it comes to the Constitution, it's different. The Constitution doesn't deal with the nittiest and the grittiest of regulations that are hopelessly twisted together. The Constitution is a fairly broad document, and deals mostly with high level principles, not day to day problems. We don't need umpires with personal strike zones. It doesn't need nearly so much interpretation, so we have much less need for precedent.
Jun '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
In the modern era, Stare decisis is just latin for that one-way ratchet turning to the left that is oft-noted and decried by conservatives
Aug '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
So then, it seems stare decisis is like ALL language, foreign and domestic: It means what the Left says it means.
May '10
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Guess who Judge Bork has endorses? Mitt Romney. http://tinyurl.com/3p7gxp7
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Liberals often claim that conservatives must follow stare decisis and when they do not, they are activist (this, of course, is never seen as a failing of liberal judges). But I have always doubted that stare decisis is a doctrine that conservatives should favor on the Supreme Court. For the common law, that is, decisions by state judges on matters such as contracts and torts, I can see a case for stare decisis. Earlier decisions represent the application of principles to new facts by thousands of judges over time -- stare decisis represents the considered wisdom of the community of the present and the past, along the lines of Burke's defense of custom and tradition.
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
But the job of the Supreme Court is different. It is not to make policy, as with the common law courts, but to interpret the Constitution. There are only nine Justices, not the thousands that make up the common law system of the states. And the nine Justices are to be compared to the hundreds in Congress or the thousands in the executive branch -- it is quite likely that the stare decisis of the Supreme Court does not enjoy any superior expression of the reasonable judgments of the community over time in comparison to the other branches of government.
And then there is the third reason, one alluded to by Bork. When common law courts make mistakes, they can be overruled by the legislature. Stare decisis represents acquiescence by the legislature. But when the Supreme Court makes a mistake, the other branches must amend the Constitution - 2/3 of the Congress, 3/4 of the states - to overrule it. So the Court must have greater freedom to correct its own mistakes.
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Thanks, John. If I could do it all over again, I'd go to law school--if only for the sheer pleasure of watching you work.
Mar '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Stare decisis wouldn't be such an issue if it had been used to strengthen individual liberty, as opposed to eroding it. A little book I have in my library identifies 3 principal periods of Constitutional interpretation:
1790-1835: Federal supremacy with regard to delegated powers with natural law protecting individual liberties;
1835-1935: Dual sovereignty with natural law protecting substantive individual rights and the due process clause of the 5th amendment and the due process and equal protection clause of the 14th amendment protecting individual procedural rights;
1935-present: Broad expansion of federal powers at the expense of individual rights, with Mr. Justice Holmes being the prime mover, and whom the author holds in no great regard.
The thing that jumps out at me is the way in which natural law has been pushed into the background as jurisprudence passes through these 3 phases. If we are to remain true to these truths which are self-evident, a re-examination of the dependence on stare decisis must be made, and Justice Thomas is to be admired for standing his ground.
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
It helps to understand the difference between "stare decisis" and "binding precedent."
I'll compare with baseball imagery; baseball being infinitely more important to me despite being a trial lawyer.
Stare decisis isn't legally required. It's an encouraged policy for courts of equal stature. When I tell my players to leg out their ground balls by sprinting to first, it is good baseball policy. But not required. The lazy kid is free to meander down to first. He hasn't done anything illegal. Sprinting to first is stare decisis. A good but un-required policy.
Binding precedent is different. A precedent is binding from higher to lower courts. If I tell my ball player to touch second on his way to third, that came down from a higher authority - the rule book. It's not just good baseball policy - it’s a baseball rule. Touching second is binding precedent.
The Supreme Court has no binding precedent because they have no higher court. They are infallible as the Pope on American law.
Which is why "Supreme Court Justice" always will be a politically charged appointment.
Viva Dave Carter for the right answer!
Edited on September 2, 2011 at 10:26pmFeb '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
I'm possibly gonna start a firestorm with this, but I disagree with John Yoo. I've just reread Article III of the Constitution and cannot find such a power assigned to the Supreme, or any court. That was a blatant power-grab on John Marshall's part in Marbury v. Madison. But such a power may be hiding within some 'penumbra'? of the 14th Amendment? Only there was no 14th Amendment at the time. The only thing keeping that 'bad law' around is stare decisis.
Mar '11
Re: Clarence Thomas, Robert Bork, and a Question for the Ricochet Legal Team
Christopher Mosier
I'm possibly gonna start a firestorm with this, but I disagree with John Yoo. I've just reread Article III of the Constitution and cannot find such a power assigned to the Supreme, or any court. That was a blatant power-grab on John Marshall's part in Marbury v. Madison. But such a power may be hiding within some 'penumbra'? of the 14th Amendment? Only there was no 14th Amendment at the time. The only thing keeping that 'bad law' around is stare decisis. · Sep 2 at 5:10pm
Marbury was not first cited as precedent for the purpose of judicial review until 1895, the 14th Amendment was enacted in 1868. It's been years since I studied the nuances of the 14th Amendment, and rather than getting slapped around by the likes of Dr. Yoo (and I'd deserve it), I prefer having him discuss it.