Clarence Thomas: Let’s overturn ‘demonstrably erroneous’ precedents

By Bob Unruh

Clarence Thomas (Official portrait)
Clarence Thomas (Official portrait)

It’s been done hundreds of times, but the urging by one member of the U.S. Supreme Court to overturn “demonstrably erroneous” precedents has enraged the left.

Justice Clarence Thomas wrote this week in a concurring opinion in the Gamble v. United States decision that the court’s understanding of stare decisis – the principle that previous decisions guide future rulings –needs a new look.

“In my view, the court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article II because it elevates demonstrably erroneous decisions – meaning decisions outside the realm of permissible interpretation – over the text of the Constitution and other duly enacted federal law,” he wrote.

“It is always ‘tempting for judges to confuse our own preferences with the requirements of the law’ … and the court’s stare decisis doctrine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents,” he continued.

“By applying demonstrably erroneous precedent instead of the relevant law’s text-as the court is particularly prone to do when expanding federal power or crafting new individual rights-the court exercises ‘force’ and ‘will,’ two attributes the people did not give it. … We should restore our stare decisis jurisprudence to ensure that we exercise ‘mer[e] judgment,’ … which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.”

After all, if the Dred Scott precedent had not been abandoned, where would the U.S. be today?

Nevertheless, the far-left Think Progress reacted with a piece headlined “Justice Thomas just admitted he wants to burn down the very idea that courts should obey precedent.”

“After nearly three decades on the Supreme Court – Thomas finally articulated his approach to stare decisis, the principle that courts should generally follow the rules announced in past decisions,” Think Progress said.

“Though Thomas dresses up his concurring opinion in Gamble with a few paragraphs that seem to soften his conclusion, the rule he ultimately articulates would give his court free rein to burn down any decision that five of its members do not like.”

However, it was five justices who created same-sex marriage in 2015, despite, according to the dissenting opinion, the ruling’s lack of any connection to the U.S. Constitution.

Continued Think Progress regarding Thomas: “It’s the kind of judicial arson one might expect from a justice who, after spending much of his career writing lone dissents that had little impact on his colleagues, now thinks he may have the votes to do things his way.”

Threat to Roe

The precedent that the left guards with the greatest vigilance is the 1973 Roe v. Wade ruling that created a right to abortion.

The basis for the decision was so faulty that even the author of the majority opinion, Justice Harry Blackmun, doubted its ability to endure. He stated, “If this suggestion of personhood [for the unborn] is established, [the pro-abortion] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.”

Already, appellate court justices in the U.S. have called for Roe to be overturned, as have state courts.

Lawmakers in Alabama and several other states have adopted highly restrictive abortion laws designed to challenge Roe.

Mat Staver, chairman of Liberty Counsel, which has fought in court from sea to sea on behalf of life, pointed out: “Roe v. Wade has already ended the lives of more than 62 million children. While we cannot undo the horrendous damage that decades of legal precedence under Roe have caused, this bill is a significant step toward making the womb a safe place in Alabama again.”

In February, Democratic Virginia Gov. Ralph Northam sparked a firestorm when he appeared to advocate infanticide.

Talk-radio host Rush Limbaugh explained: “What do you expect to happen when the Democrat Party gives standing ovations to legislation permitting the killing of babies who have been born? What do you expect to happen? What does anybody expect? This country has not gone over to the dark side of liberalism, in toto. We haven’t gotten anywhere close to that.”

He said most Americans are not in line with the pro-abortion agenda.

Troy Newman, president of the pro-life Operation Rescue, said in response to Thomas’ opinion: “For years, those of us that oppose abortion have strongly believed that Roe v. Wade was wrongly decided because it created a fallacious ‘right’ to abortion out of whole cloth. I very much support Justice Thomas’ view of stare decisis and the need to dispense with rulings that have manufactured ‘rights’ that the Constitution never established, including abortion.

“Years ago, we had a saying to the effect that if the womb had a window, abortion would never be tolerated. Today, with the advent of ever-improving ultrasound technology and advances in the field of fetology, we now have that ‘window in the womb’ that shows us clearly that the pre-born baby is a distinct, individual human being that should be accorded the same legal protections that the rest of us enjoy. I look forward to the day when Roe v. Wade is swept into the dustbin of history where it belongs – which may now be sooner than later.”

The left’s fear that it may lose its right to abortion is fueled by President Trump’s appointment of two new justices to the Supreme Court, Neil Gorsuch and Brett Kavanaugh.

Thomas’ opinion came in a case over double jeopardy – the Constitution’s ban on being charged with and tried for the a crime twice.

The high court affirmed by a 7-2 vote its “separate sovereigns” exception to the Fifth Amendment double jeopardy prohibition, holding that someone charged for a particular crime by both the federal government and a state government is not protected.

The Rutherford Institute filed a friend-of-the-court brief in the traffic-stop case.

“As Justice Gorsuch recognized in his dissent, ‘A free society does not allow its government to try the same individual for the same crime until it’s happy with the result,'” said Rutherford Institute President John W. Whitehead.

141 times

WND reported the Congressional Research Service documented the justices have reversed themselves at least 141 times over their history.

“How the court uses precedent to decide controversial issues has prompted debate over whether the court should follow rules identified in prior decisions or overrule them, the report said. “The court’s treatment of precedent implicates longstanding questions about how the court can maintain stability in the law by adhering to precedent under the doctrine of stare decisis, while correcting decisions that rest on faulty reasoning, unworkable standards, abandoned legal doctrines, or outdated factual assumptions.”

Those “outdated factual assumptions” are what worry pro-abortion activists.

The Roe justices said science wasn’t able in 1973 to conclude when personhood begins. But now it has been documented in multiple ways that the fetus is a separate, unique individual who, like a 3-year-old, eventually turns into an adult.

And there have been several efforts to amend existing law to recognize the humanity of the unborn, which would bestow all of the Constitution’s protections for individuals on the unborn.

The report lists the 141 cases that overruled Supreme Court precedent and explains on what basis the judgment was made.


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