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3w ago

Clarence Thomas Questions Stare Decisis in Rare Public Remarks

He signaled openness to reconsidering past rulings rooted in substantive due process.

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WASHINGTON, DC - FEBRUARY 07: Supreme Court Justices Amy Coney Barrett and Ketanji Brown Jackson listen as President Joe Biden delivers the State of the Union address to a joint session of Congress on February 7, 2023 in the House Chamber of the U.S. Capitol in Washington, DC. The speech marks President Biden's first address to the new Republican-controlled House. (Photo by Jacquelyn Martin-Pool/Getty Images)
FILE - United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, D.C. (Photo by Alex Wong/Getty Images)
Supreme Court Justice Clarence Thomas said the precedent principle is “not some sort of talismanic deal where you can just say ‘stare decisis’ and not think, turn off the brain,” according to ABC News. (J. SCOTT APPLEWHITE/AP FILE)

Overview

  • Speaking at Catholic University’s Columbus School of Law in Washington, D.C., Thomas said precedent is not “the gospel” and urged reassessing how the Court treats stare decisis, according to ABC News.
  • He compared uncritical reliance on precedent to staying on a train without checking the engine room, joking one might find “an orangutan” driving.
  • His remarks align with his 2022 Dobbs concurrence urging reconsideration of privacy-based decisions, including Obergefell v. Hodges, Griswold v. Connecticut, and related cases.
  • The Supreme Court has not agreed to hear any case that would revisit Obergefell; recent state resolutions are nonbinding and none has passed, and Kim Davis’s petition remains ungranted.
  • If Obergefell were overturned, many states could again restrict the issuance of new licenses, though the Respect for Marriage Act requires federal and interstate recognition of same-sex marriages performed where legal; Justice Amy Coney Barrett has described the right to marry as “fundamental.”