Thomas on Precedent

Clarence Thomas is blunt when asked how he is “similar” to fellow conservative Antonin Scalia. “Oh no, no,” he says. “How I ‘followed’ Justice Scalia.”

It was the storyline when Thomas first joined the Court back in 1991. Critics and more than a few journalists immediately portrayed him as a “puppet” of brilliant white conservative Scalia. Thomas reflexively did “Scalia’s bidding,” they said, without a thought of his own. Scalia was the “mentor” who pulled the strings.

The storyline is false—and was from his very first week on the Court--but Thomas says that point should be “something that goes without saying.” The assumption he followed Scalia is bigoted, he said, and driven by racial stereotypes. “You know, the black guy is supposed to follow somebody white,” he says.

“There’s no need to tip-toe around that,” Thomas says. “The story line was, well, I couldn’t be doing this myself, he must be doing it for me because I’m black.”

“Again, I go back to my point. Who were the real bigots?” he asks. “It’s obvious.”

That exchange, during a recent interview in his chambers at the Court, triggered a wide-ranging discussion about Thomas’ views on the law, the justices he admires and why he insists that the Constitution must be interpreted as “colorblind.” He talked about why he believes a judge must always put aside his personal views—even when his heart says otherwise. He spoke at length about Justice Harlan’s dissent in Plessy v. Ferguson, the infamous case that upheld segregation, and how he sees that dissent as an inspiration—the very model of judging.

He has a lot to say, and I’m going to spend this week writing about it.

Let’s start first with Scalia. I think we can all agree (as Harry Blackmun’s papers make clear) Thomas doesn’t “follow” anyone—as some of my colleagues in the press have been pointing out for years, Tony Mauro being among the first.

Thomas, to be sure, admires Scalia. In his book, Thomas says he told the Bush White House “Scalia,” when lawyers asked him, as a prospective nominee, the standard question: “Which Justice do you most admire?” (Sam Alito, when asked that question, said “Rehnquist.”) Thomas told me he’d been impressed by Scalia’s opinion in Morrison v. Olson, which the Court had decided when he at EEOC. It had divided the Court 7-1, and Scalia’s dissent is a classic exposition on separation of powers.

“In the Olson case, he had been the lone voice that the independent counsel law actually violated the whole notion of separation of powers, and it turns out now—when the interest changed—that people agree with him. But I just thought it was fascinating,” Thomas said. “He was not going along with something simply because, at that time, it was fairly popular. He was going back to that document, going back to the history and the tradition of that document, and then explaining it in a very rational and well-written way.”

But Thomas parts ways with Scalia on significant issues—especially, as most of you know, on the issue of stare decisis, which is Latin for “let the decision stand.” That principle maintains stability in the law and acts as a restraint on judges. All justices say they believe in stare decisis—and they testify to that effect in their confirmation hearings--but all of them also are willing to set it aside when they think the Court got it wrong in the past.

Thomas and Scalia, for example, have voted to overturn Roe v. Wade because they don’t think a right to an abortion is in the Constitution. This past term, they also would have overturned other decisions, including a recent one that had upheld the landmark McCain-Feingold campaign finance reform law. But other conservatives—John Roberts and Sam Alito--instead took a more cautious approach and held the Court back.

Liberal justices walk away from the principle, too. In recent years they overturned cases, for example, that had allowed the death penalty for the mentally retarded and for juveniles. They also overturned a 1986 decision that allowed states to prosecute homosexuals for private, consensual sex. And they have indicated that some of the Court’s recent decisions will not have staying power—that they will overturn those cases the moment the Court’s membership changes.

But of all the justices, Thomas is the one most willing to rethink old cases. In Ken Foskett’s insightful book, Judging Thomas, Scalia said Thomas “doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘let’s get it right.’"

Thomas says Scalia’s claim is an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution. 

But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

That willingness to “think it through” separates Thomas from Scalia in a number of cases.

“Maybe you can’t change it, but at least let’s make it coherent as to what happened. You can accept the precedent, but you should at least try to see what went on,” he says. “You go back to the document. You go back to the language of the Constitution, to the history, to the tradition. You go through it all, and then you compare that with the precedent.”

And at what point does a judge deviate from the precedent?

“That’s an individual decision on the part of judges. The judges to whom--or for whom--stare decisis applies most are the judges on the courts below us: the courts of appeals, the district courts, the magistrate judges, the bankruptcy judges, etc.

“Up here, this is the end of the line, and the only people who could revisit—in particular—constitutional cases are the members of this Court,” Thomas says. “In the statutory cases, Congress can revisit that. So you are less apt to change a precedent—because it can be corrected in the legislature, as opposed to this being the sole place that it can be changed.”

Thomas says he believes in stare decisis, especially in the statutory cases. If it’s a choice between precedent and what he considers a correct reading of the Constitution, though, he’s more willing to go to the Constitution. That’s not “radical,” he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error.

He points out that a rigid adherence to precedent would mean Plessy v. Ferguson still would be on the books. Plessy was established doctrine, 58 years old, when it was overturned in Brown v. Board of Education.

That’s not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.

In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say “no more.” He suggested as much in his concurring opinion in United States v. Lopez, when the Court in 1995 struck down part of the Gun-Free School Zones Act as exceeding Congress’ power under the Commerce Clause.

Although Thomas suggested the Court should reconsider its approach under the Commerce Clause—which he believes is inconsistent with the Constitution and is a relatively recent innovation—he also stressed that “this extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions.”

The analysis does suggest, he wrote in his concurrence in Lopez, “that we ought to temper our Commerce Clause jurisprudence.”

Thomas sees precedent as the engine--or, in a different analogy, the bedrock. When you build a house or a barn, you have to get to solid ground to lay the foundation. So you dig. If you hit water, you keep digging. If you hit mud, you keep digging. Thomas wouldn’t stop until he hit the firm footing of solid ground.

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