There is of course no doubt that Justices Clarence Thomas and Antonin Scalia take different views on the role of stare decisis in Supreme Court decisions. What is a hard question to figure out is which of these views is correct, and why. As far as Thomas is concerned, fidelity to the Constitution is the sole virtue, and any effort to change its meaning through subsequent judicial decisions must be rejected. No matter how much water has passed over the dam, it is always back to the original position.
John Yoo in his thoughtful comments to Peter's post notes that the slow evolution that leads to the emergence of common law doctrine does not apply to the Supreme Court, where nine justices may with a single violent gesture move the law far from its original home. He thinks therefore that the Court should have the power to correct its own mistakes, without showing as much deference to past decisions as common law courts do. I don’t read John as going all the way with Justice Thomas, but he clearly is more insistent on fidelity to the original Constitution than Justice Scalia.
There is a hidden premise in Thomas and Yoo’s argument that requires explicit discussion. How do we know when the first decision was a “mistake” which the second decision ought to correct? In dealing with this question, the common reference is to the correction of the dreaded 1896 separate but equal decision in Plessy v Ferguson by Brown v. Board of Education some 58 years later.
On moral grounds, it is easy to applaud the Brown decision, but as a matter of constitutional text and history, the case was a lot closer than is recognized today. Indeed at the time, the serious criticism of Brown stemmed from people who did not think that equal protection had anything to do with the public provision of education, but was concerned largely with the administration of the criminal law in an even-handed fashion between the races.
To give but another example, I have come to believe that the correct interpretation of the Constitution lends no textual support for the principle of judicial supremacy, which means that other branches of government have to yield to the Court in the interpretation of the Constitution. I don’t want to rehearse the argument here, but it is worth asking whether after reading the decision more broadly we should go back to the original position such that the Court could not enforce any limitations contained either in the commerce clause or the bill of rights, let alone the decrees on racial integration in the post-Brown years.
My own view is that the broader reading of Marbury is so embedded in common practice that the Court could not go back on it, and should not try. Moreover, one reason why we stick with Marbury and denounce Plessy is that our normative commitments, which run in opposite ways on the two cases, have a good deal to do with whether we continue to follow a constitutional “mistake” or correct it.
In the end therefore, I don’t think that the strong Thomas position can be maintained. What is so vexing is no one has a strong theory about the proper role of stare decisis, which means that the upcoming brawl over the Patient Protection and Affordable Health Care Act will present immense challenges to everyone on both sides of the debate. I have had my say on that elsewhere, and won’t rehearse those arguments again here, except to say that our reading of Wickard v. Filburn will make a large difference in how the case comes out. If it is thought sound on originalist position, the health care bill will be sustained. If that position is rejected, as it should be, the case for the constitutional of the PPACA is much weaker.